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DESKBOOK 2016

Federal Litigation

The Judge Advocate General’s Legal Center and School

United States Army

Federal Litigation

Table of Contents

Tab A –Case Management and Responsibilities for Litigation

Tab A-I – Case Management Report Example

Tab A-II – Litigation Timeline

Tab B-I – Systematic Analysis of Cases in Federal Litigation - Overview

Tab B-II – Systematic Analysis of Cases in Federal Litigation – Jurisdiction

Tab C – Pleadings and Motions

Tab D – Discovery Theory Practice

Tab E – Depositions

Tab F – TRO and PI

Tab G – Litigation at the Court of Federal Claims

Tab H – FTCA

Tab I – Individual Liability of Federal Officials

Tab J – ADR Demonstration Materials

A-1

FEDERAL LITIGATION COURSE

TAB A

CASE MANAGEMENT AND RESPONSIBILITIES

FOR LITIGATION

I. INTRODUCTION

II. RESPONSIBILITIES FOR LITIGATION

A. United States Department of Justice

1. Mission:

To enforce the law and defend the interests of the United States according

to the law; to ensure public safety against threats foreign and domestic; to

provide federal leadership in preventing and controlling crime; to seek just

punishment for those guilty of unlawful behavior; and to ensure fair and

impartial administration of justice for all Americans.

2. Statutory Authority:

a) “Except as otherwise authorized by law, the conduct of litigation in

which the United States, any agency, or officer thereof is a party,

or is interested, and securing evidence therefore, is reserved to the

officers of the Department of Justice, under the direction of the

Attorney General.” 28 U.S.C. § 516.

b) “Except as otherwise authorized by law, the Attorney General shall

supervise all litigation to which the United States, an agency, or

officer thereof is a party, and shall direct all United States

Attorneys, assistant United States Attorneys, and special attorneys

appointed under section 543 of this title in the discharge of their

respective duties.” .

A-2

3. Organization of the Department of Justice

There are 42 separate components of the Department. These

include the United States Attorneys, who prosecute offenders and

represent the United States Government in court; the National

Security Division, which coordinates the Department’s highest

priority of combating terrorism and protecting national security the

major investigative agencies – the Federal Bureau of Investigation,

the Drug Enforcement Administration, and the Bureau of Alcohol,

Tobacco, Firearms and Explosives – which prevent and deter crime

and arrest criminal suspects; the United States Marshals Service,

which protects the federal judiciary, apprehends fugitives, and

detains persons in federal custody; and the Federal Bureau of

Prisons, which confines convicted offenders. The litigating

divisions enforce federal criminal and civil laws, including civil

rights, tax, antitrust, environmental, and civil justice statutes. The

Office of Justice Programs and the Office of Community Oriented

Policing Services provide assistance to state, tribal, and local

governments. Other departmental components include the National

Drug Intelligence Center, the Executive Office for United States

Trustees, the Justice Management Division, the Executive Office

for Immigration Review, the Community Relations Service, and

the Office of the Inspector General. Although headquartered in

Washington, D.C., the Department conducts much of its work in

offices located throughout the country and overseas.

B. Civil Division

1. Mission:

The Civil Division represents the United States in any civil or criminal

matter within its scope of responsibility – protecting the United States

Treasury, ensuring that the federal government speaks with one voice in

its view of the law, preserving the intent of Congress, and advancing the

credibility of the government before the courts.

2. Major functions:

a) Defend or assert the laws, programs, and policies of the United

States, including defending new laws implementing the President's

domestic and foreign agenda against constitutional challenges.

b) Recover monies owed to the United States and victims as the result

of fraud, loan default, bankruptcy, injury, damage to federal

property, violation of consumer laws, or unsatisfied judgments.

A-3

c) Defend the interests of the U.S. Treasury, prevailing against

unwarranted monetary claims, while resolving fairly those claims

with merit.

d) Fight terrorism through litigation to detain and remove alien

terrorists; defend immigration laws and policies, including

determinations to expel criminal aliens.

e) Enforce consumer protection laws and defend agency policies

affecting public health and safety.

f) Defend the government and its officers and employees in lawsuits

seeking damages from the U.S. Treasury or from individuals

personally.

g) Implement compensation programs, such as the Childhood

Vaccine and Radiation Exposure programs; support viable

alternatives to litigation when appropriate.

h) Represent the United States in foreign courts through foreign

counsel supervised and instructed by attorney staff in Washington

and London.

i) Represent the interests of the United States in civil and criminal

litigation in foreign courts.

3. Components

a) Appellate Staff

(1) Responsible for the appellate work of the entire Civil

Division

(2) Handles the many cases that are appealed directly from

administrative agencies to the courts of appeals

(3) Attorneys on the Staff draft briefs and argue cases in the

courts of appeals. In addition, each attorney participates in

drafting various documents for the United States Supreme

Court, including petitions for certiorari and briefs on the

merits.

A-4

(4) Typical Appellate Staff cases include defending against

constitutional challenges to Acts of Congress, Executive

decisions, and national security programs; administrative

challenges to agency rules and adjudications; tort claims

against the United States; employment discrimination

claims against the government; and claims against federal

officers in their individual capacities for the alleged

violation of a person’s constitutional rights (Bivens claims).

b) Commercial Litigation Branch

(1) Attorneys work in one of six major areas: Corporate and

Financial Litigation, the Office of Foreign Litigation, the

Fraud Section; Intellectual Property, and the National

Courts. A section oversees each area.

(2) Handles cases that involve billions of dollars in claims both

by and against the government.

c) Federal Programs Branch

(1) The Branch litigates on behalf of approximately 100 federal

agencies, the President and Cabinet officers, and other

government officials.

(2) Activities in the Federal Programs Branch include the

defense against constitutional challenges to federal statutes,

suits to overturn government policies and programs, and

attacks on the legality of government decisions. The

Federal Programs Branch also initiates litigation to enforce

regulatory statutes and to remedy statutory and regulatory

violations.

d) Torts Branch

(1) The Torts Branch represents the interests of the United

States in suits where monetary judgments are sought for

damages resulting from negligent or wrongful acts. The

Branch also handles actions involving injury or damage to

government property.

A-5

(2) Four sections handle the Torts Branch’s major practice areas: the Aviation and Admiralty Section; the Environmental Tort Litigation Section; the Federal Tort Claims Act Litigation Section; and the Constitutional and Specialized Torts Litigation Section.

e) The Consumer Protection Branch (CPB)

(1) CPB enforces and defends the consumer protection

programs of four client agencies: the Food and Drug

Administration (FDA), the Federal Trade Commission

(FTC), the Consumer Product Safety Commission, and the

Department of Transportation's National Highway Traffic

Safety Administration.

(2) By regulation, 28 C.F.R. § 0.45(j), CPB is responsible for

litigation under the principal Federal consumer protection

laws these agencies enforce. These laws include the Federal

Food, Drug, and Cosmetic Act; the odometer tampering

prohibitions of the Motor Vehicle Information and Cost

Savings Act; the Consumer Product Safety Act; and a

variety of laws administered by the FTC, such as the Fair

Debt Collection Practices Act.

f) Office of Immigration Litigation

(1) The Office of Immigration Litigation oversees all civil

immigration litigation, both affirmative and defensive, and

is responsible for coordinating national immigration

matters before the federal district courts and circuit courts

of appeals.

(2) This office provides support and counsel to all federal

agencies involved in alien admission, regulation, and

removal under U.S. immigration and nationality statutes.

Office of Immigration Litigation attorneys work closely

with United States Attorneys' Offices on immigration

cases. The Office of Immigration Litigation is divided into

two functional sections, an Appellate Section and a District

Court Section. United States Attorneys

4. Mission:

A-6

The United States Attorneys serve as the nation's principal litigators under

the direction of the Attorney General.

5. Statutory Authority:

a) One United States Attorney appointed by the President for each

judicial district. 28 U.S.C. § 541.

b) Assistant United States Attorneys (AUSA) are appointed by the

Attorney General. 28 U.S.C. § 542.

c) “[E]ach United States Attorney, within his district, shall . . . (2)

prosecute or defend, for the Government, all civil actions, suits or

proceedings in which the United States is concerned.” 28 U.S.C. §

547.

6. Organization of the United States Attorney’s Office

a) There are 93 United States Attorneys stationed throughout the

United States, Puerto Rico, the Virgin Islands, Guam, and the

Northern Mariana Islands.

b) One United States Attorney is assigned to each of the judicial

districts, with the exception of Guam and the Northern Mariana

Islands where a single United States Attorney serves in both

districts.

c) Each United States Attorney is the chief federal law enforcement

officer of the United States within his or her particular jurisdiction.

C. Attorneys at Army Activities or Commands (AR 27-40, para. 1-4)

III. CASE MANAGEMENT

A. Federal Rules of Civil Procedure

1. Scope and Purpose

“These rules govern the procedure in all civil actions and proceedings in

the United States district courts, except as stated in Rule 81. They should

be construed and administered to secure the just, speedy, and inexpensive

determination of every action and proceeding.” Fed. R. Civ. P. 1.

2. Civil Litigation Timeline

a) Commencing an Action - Fed. R. Civ. P. 3 - 6

A-7

b) Pleadings and Motions - Fed. R. Civ. P. 7 – 16

Scheduling Orders (Rule 16(b))

c) Disclosures and Discovery - Fed. R. Civ. P. 26 – 37

Discovery Planning Conference (Rule 26(f))

d) Trials - Fed. R. Civ. P. 38 – 53

e) Judgment - Fed. R. Civ. P. 54 – 63

B. Agency Counsel

1. Read Complaint/Summons

2. Determine Filing Date

3. Check Service Date (120 days from filing)

4. Check Proper Service

a) Rule 4(i)

b) AR 27-40, Chapter 2

5. Determine Answer Due Date (usually 60 days from Service, if waived)

6. Determine whether the case should be delegated or removed

7. Prepare a litigation report (AR 27-40, para. 3-9)

8. Contact “local counsel” to discuss case

9. Determine whether the case could have a special interest. If so, coordinate

with OGC

10. Examine lit report looking for bases for a MTD and affirmative defenses.

Ensure lit report is forwarded to the AUSA

11. Coordinate with AUSA or DOJ

a) Litigation Report, background issues, and possible delays

b) Discovery ( e.g. litigation holds, e-discovery issues)

A-8

c) Drafting an Answer or MTD

IV. CONCLUSION

A-I-1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JENNIFER NORRIS, Individually, and as

Parent and Legal Guardian of DYLAN

NORRIS, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

/

Case No. 2:03-CV-563-FTM-29SPC

Case Management Report

The parties have agreed on the following dates and discovery plan pursuant to

Fed.R.Civ.P. 26(f) and Local Rule 3.05(c):

DEADLINE OR EVENT AGREED DATE

Certificate of Interested Persons and Corporate Disclosure

Statement

Filed.

Motions to Add Parties or to Amend Pleadings 3/19/13

Disclosure of Expert Reports Plaintiff:

Defendant:

7/16/13

10/15/13

Discovery Deadline Fact:

Expert:

1/19/14

3/18/14

Dispositive Motions, Daubert, and Markman Motions 7/1/14

A-I-2

DEADLINE OR EVENT AGREED DATE

Meeting In Person to Prepare Joint Final Pretrial Statement 8/29/14

Joint Final Pretrial Statement 9/16/14

All Other Motions Including Motions In Limine, Trial Briefs 10/3/14

Final Pretrial Conference 10/3/14

Trial Term Begins 11/1/14

Estimated Length of Trial 10 Days

Jury / Non-Jury Non-Jury

Mediation Deadline:

Mediator:

Address:

Telephone:

8/5/14

TBD

All Parties Consent to Proceed Before Magistrate Judge Yes:

No: X

Likely to Agree:

A-I-3

Case Management Report Page 3 Case No. 2:03-CV-563-FTM-29SPC

I. Meeting of Parties.

Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A), a meeting was held on January 15,

2013, at 1:30 p.m., and was attended in person by:

Name Counsel For

Ann Frank Plaintiffs

Mark Steinbeck United States of America

Counsel for Plaintiffs subsequently met with Kenneth M. Oliver, counsel for the State of

Florida, who concurred with the scheduling matters reflected herein.

II. Pre-Discovery Initial Disclosures of Core Information.

A. Fed.R.Civ.P. 26(a)(1)(C) - (D) Disclosures.

The parties agree to exchange information described in Fed.R.Civ.P. 26(a)(1)(C) - (D) by

February 27, 2013.

Below is a description of information disclosed or scheduled for disclosure.

Plaintiff's statement of damages.

B. Fed.R.Civ.P. 26(a)(1)(A) - (B) Disclosures.

The parties agree to exchange information referenced by Fed.R.Civ.P. 26(a)(1)(A) - (B)

by February 27, 2013.

Below is a description of information disclosed or scheduled for disclosure.

Information required by Rule 26(a)(1)(A) & (B).

III. Agreed Discovery Plan for Plaintiffs and Defendants.

A. Certificate of Interested Persons and Corporate Disclosure Statement.

This Court has previously ordered each party, governmental party, intervenor, non-party

movant, and Rule 69 garnishee to file and serve a Certificate of Interested Persons and

Corporate Disclosure Statement using a mandatory form. No party may seek discovery

A-I-4

Case Management Report Page 4 Case No. 2:03-CV-563-FTM-29SPC

from any source before filing and serving a Certificate of Interested Persons and

Corporate Disclosure Statement. A motion, memorandum, response, or other paper —

including emergency motion — is subject to being denied or stricken unless the filing

party has previously filed and served its Certificate of Interested Persons and Corporate

Disclosure Statement. Any party who has not already filed and served the required

certificate is required to do so immediately.

Every party that has appeared in this action to date has filed and served a Certificate of

Interested Persons and Corporate Disclosure Statement, which remains current:

Yes: X

No:

Amended Certificate will be filed by (party) on or before

(date).

B. Discovery Not Filed.

The parties will not file discovery materials with the Clerk except as provided in Local

Rule 3.03. The Court encourages the exchange of discovery requests on diskette. See

Local Rule 3.03 (f). The parties further agree as follows: NA.

C. Limits on Discovery.

Absent leave of Court, the parties may take no more than ten depositions per side (not per

party). Fed.R.Civ.P. 30(a)(2)(A); Fed.R.Civ.P. 31(a)(2)(A); Local Rule 3.02(b). Absent

leave of Court, the parties may serve no more than twenty-five interrogatories, including

sub-parts. Fed.R.Civ.P. 33(a); Local Rule 3.03(a). The parties may agree by stipulation

on other limits on discovery. The Court will consider the parties’ agreed dates, deadlines,

and other limits in entering the scheduling order. Fed.R.Civ.P. 29. In addition to the

deadlines in the above table, the parties have agreed to further limit discovery as follows:

1. Depositions. The parties request leave of Court to take no more than

15 depositions per side based on the nature of the claims in this matter

creating the probability that each side will have 4 or more experts and

on the number of individual parties and medical providers.

2. Interrogatories. The parties request leave of Court to propound no

more than 50 interrogatories per side based on the nature of the

A-I-5

Case Management Report Page 5 Case No. 2:03-CV-563-FTM-29SPC

claims in this matter creating the probability that each side will have 4

or more experts and on the number of individual parties and medical

providers.

3. Document Requests. NA.

4. Requests to Admit. NA.

5. Supplementation of Discovery. NA.

D. Discovery Deadline.

Each party shall timely serve discovery requests so that the rules allow for a response

prior to the discovery deadline. The Court may deny as untimely all motions to compel

filed after the discovery deadline. In addition, the parties agree as follows: to split

discovery deadlines to allow expert opinion discovery to be conducted after

conclusion of fact discovery, in an effort to make unnecessary the taking of

supplemental depositions of expert witnesses.

E. Disclosure of Expert Testimony.

On or before the dates set forth in the above table for the disclosure of expert reports, the

parties agree to fully comply with Fed.R.Civ.P. 26(a)(2) and 26(e). Expert testimony on

direct examination at trial will be limited to the opinions, basis, reasons, data, and other

information disclosed in the written expert report disclosed pursuant to this order. Failure

to disclose such information may result in the exclusion of all or part of the testimony of

the expert witness. The parties agree on the following additional matters pertaining to the

disclosure of expert testimony: NA.

F. Confidentiality Agreements.

Whether documents filed in a case may be filed under seal is a separate issue from

whether the parties may agree that produced documents are confidential. The Court is a

public forum, and disfavors motions to file under seal. The Court will permit the parties

to file documents under seal only upon a finding of extraordinary circumstances and

particularized need. See Brown v. Advantage Engineering, Inc., 960 F.2d 1013 (11th Cir.

1992); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985). A party

seeking to file a document under seal must file a motion to file under seal requesting such

Court action, together with a memorandum of law in support. The motion, whether

A-I-6

Case Management Report Page 6 Case No. 2:03-CV-563-FTM-29SPC

granted or denied, will remain in the public record.

The parties may reach their own agreement regarding the designation of materials as

“confidential.” There is no need for the Court to endorse the confidentiality agreement.

The Court discourages unnecessary stipulated motions for a protective order. The Court

will enforce appropriate stipulated and signed confidentiality agreements. See Local Rule

4.15. Each confidentiality agreement or order shall provide, or shall be deemed to

provide, that “no party shall file a document under seal without first having obtained an

order granting leave to file under seal on a showing of particularized need.” With respect

to confidentiality agreements, the parties agree as follows: NA.

G. Other Matters Regarding Discovery. NA.

IV. Settlement and Alternative Dispute Resolution.

A. Settlement.

The parties agree that settlement prior to completion of discovery is:

likely X unlikely.

The parties request a settlement conference before a U.S. Magistrate Judge.

yes X no likely to request in future

B. Arbitration.

Local Rule 8.02(a) defines those civil cases that will be referred to arbitration

automatically. Does this case fall within the scope of Local Rule 8.02(a)?

yes X no

For cases not falling within the scope of Local Rule 8.02(a), the parties consent to

arbitration pursuant to Local Rules 8.02(a)(3) and 8.05(b):

yes X no likely to agree in future

Binding Non-Binding

In any civil case subject to arbitration, the Court may substitute mediation for arbitration

upon a determination that the case is susceptible to resolution through mediation. Local

A-I-7

Case Management Report Page 7 Case No. 2:03-CV-563-FTM-29SPC

Rule 8.02(b). The parties agree that this case is susceptible to resolution through

mediation, and therefore jointly request mediation in place of arbitration:

X yes no likely to agree in future

C. Mediation.

The parties agree to mediate this matter and to use a mediator from the Court’s approved

list. The parties agree to the date stated in the table above as the last date for mediation.

D. Other Alternative Dispute Resolution. NA

Date: Paul I. Perez

United States Attorney

By:

Mark A. Steinbeck Assistant United States Attorney

Florida Bar No. 913431

2110 First Street, Suite 3-137

Fort Myers, Florida 33901

Telephone: (239) 461-2200

Facsimile: (239) 461-2219

Counsel for the United States

Date:

Ann T. Frank Florida Bar No. 0888370

Ann T. Frank, P.A.

2124 Airport Road South, Suite 102

Naples, Florida 34112

Telephone: (239) 793-5353

Facsimile: (239) 793-6888

Counsel for Plaintiffs

Date:

A-I-8

Case Management Report Page 8 Case No. 2:03-CV-563-FTM-29SPC

Kenneth M. Oliver

Assistant Attorney General Office of the Florida Attorney General

2000 Main Street, Suite 400

Fort Myers, Florida 33901

Telephone: (239) 664-8403

Facsimile: (239) 939-0070

Counsel for the State of Florida

LITIGATION TIME LINE

DAYS LITIGATION EVENT

- 0 COMPLAINT (Rule 3)

-

- 120 SERVICE (Rule 4(m) – no later than 120 days after Filing of Complaint)

- 180 DEFENDANT RESPONSE - ANSWER or MOTIONSTO DISMISS (Rule 12 – within 21 days or no later

than 60 days after the request for waiver was sent)

- 219 DISCOVERY CONFERENCE (Rule 26(f) – ASAP or Minimum 21 days before Scheduling Order).

- 233 INITIAL MANDATORY DISCLOSURES (Rule 26(a)(1)- no later than 14 days after Rule 26(f)

Conference)

- 240 SCHEDULING CONFERENCE AND ORDER (Rule 16(b) – Issued 120 days after Complaint is served.

Time Line assumes Court sets Trial in six months).

- 241 DISCOVERY (Rules 26 - 37 – Time period varies)

- 330 DISCLOSURE OF EXPERTS (Rule 26(a)(2)(D)(i) – 90 days before trial).

- 360 DISPOSITIVE MOTIONS(Rule 56- Timing varies)

- 390 PRETRIAL DISCLOSURES OF WITNESSES AND EXHIBITS (Rule 26(a)(3) – 30 days before trial)

-

- 404 OBJECTIONS TO ADMISSABILITY OF WITNESSES AND EXHIBITS (Rule 26(a)(3) – w/in 14 days

or waived without showing of “good cause.”)

-

- 420 TRIAL

B-I-1

FEDERAL LITIGATION COURSE

TAB B-I

SYSTEMIC ANALYSIS OF CASES

IN FEDERAL LITIGATION

Overview

I. INTRODUCTION.

A. Military decisions, programs, and policies are subject to review by the federal

courts.

B. Themes common to litigation against the military departments:

1. Suits almost exclusively in the federal courts.

2. Suits are generally filed against a federal agency.

3. The military and its officials are involved.

II. METHOD OF ANALYSIS

A. Case management and responsibility.

B. Department of Justice representation and removal of case to federal court.

C. Power of the federal court to decide case: Does the federal court have

jurisdiction?

1. Grants of jurisdiction.

a) Constitutional limits.

b) Statutory grants.

2. Justiciable case or controversy.

a) Adversarial.

(1) Advisory opinions.

(2) Ripeness.

(3) Mootness.

B-I-2

(4) Standing.

b) Political question.

D. Federal Remedies: Can the court award the relief demanded?

1. Sovereign immunity.

2. Types of remedies:

a) Money.

b) Mandamus.

c) Habeas corpus.

d) Injunctions.

e) Declaratory judgment.

E. Exhaustion of administrative remedies: Has the plaintiff pursued all intra-agency

remedies?

1. Basic doctrine.

2. Remedies available.

3. Exceptions.

F. Reviewability: Should the court review and decide issues in controversy?

1. APA.

2. Mindes.

G. Scope of review: To what extent should the federal court substitute its judgment

for that of the military decision-maker?

H. Official Immunity.

1. Constitutional Tort Lawsuit.

2. Common Law Tort Lawsuit.

III. CONCLUSION.

B-II-1

FEDERAL LITIGATION COURSE

TAB B-II

SYSTEMIC ANALYSIS OF CASES

IN FEDERAL LITIGATION

Jurisdiction

I. FEDERAL JUDICIAL POWER.

A. General.

"The judicial power shall extend to all cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made, or which shall be

made under their Authority; -- to all Cases affecting Ambassadors, other Public

Ministers and Consuls; -- to all Cases of admiralty and Maritime Jurisdiction; -- to

Controversies to which the United States shall be a party; -- to Controversies

between two or more States; -- between a State and Citizens of another State; --

between Citizens of different States; -- between Citizens of the same State claiming

Lands under Grants of different States, and between a State, or the Citizens thereof,

and foreign States, Citizens or Subjects." -- U.S. Const. art. III, § 2.

B. Limited jurisdiction. See generally, Turner v. Bank of North America, 4 U.S. 8, 4

Dall. 8 (1799).

1. Subjects and Parties. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378

(1821). Superceded by statute as stated in Nicodemus v. Union Pacific

Corp., 318 F.3d 1231 (10th Cir.(Wyo.) Feb 13, 2003), rehearing in banc

granted (Apr 22, 2003).

2. Cases and Controversies -- Justiciability. Flast v. Cohen, 392 U.S. 83, 94-95

(1968) (discussing who has standing to file suit).

II. CONGRESSIONAL GRANTS OF JURISDICTION

A. General.

B-II-2

1. Except for Supreme Court's original jurisdiction derived directly from the

Constitution, federal judicial power is dependent upon a statutory grant of

jurisdiction. Kline v. Burke Constr. Co., 260 U.S. 226, 233-34 (1922)

(upholding “that where an action is one in rem that court whether state or

federal which first acquires jurisdiction draws itself the exclusive authority to

control and dispose of the res, involves the conclusion that the rights of the

litigants to invoke the jurisdiction of the respective courts are of equal

rank.”); Goehring v. Harleysville Mut. Cas. Co., 460 Pa. 138, 145, 331 A.2d

457, 460 (1975);; See also, Stevenson v. Fain, 195 U.S. 165, 167 (1904);

Mayor of Nashville v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1867)(superceded

by statute as stated in Johns-Manville Corp. v. U.S., 893 F.2d 324 (Fed.Cir.

Dec 28, 1989).

a) Jurisdictional statute may be more restrictive than the Constitution.

Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).

b) Jurisdictional statute may not exceed constitutional limits of

jurisdiction. Hodgson & Thompson v. Bowerbank, 9 U.S. (5

Cranch) 303, 304 (1809).

2. The burden of pleading and proving the subject-matter jurisdiction of the

court is on the plaintiff. McNutt v. General Motors Acceptance Corp., 298

U.S. 178, 182, 189 (1936).

3. The United States cannot be sued without its consent. United States v.

Mitchell, 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S.

584, 586 (1941).

4. See Selected Federal Statutes, D-III-1 to D-III-4.

B. Federal Question Jurisdiction: 28 U.S.C. § 1331.

1. The statute: "The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States."

2. Historical origins.

3. The meaning of "arising under federal law."

B-II-3

a) "[A]n action arises under federal law . . . if in order for the plaintiff to

secure the relief sought he will be obliged to establish both the

correctness and the applicability to his case of a proposition of

federal law -- whether that proposition is independently applicable or

becomes so only by reference from state law." P. Bator, P. Mishkin,

D. Shapiro, H. Wechsler, Hart & Wechsler's The Federal Courts and

the Federal System, page 889 (3d ed. 1988). See Empire

Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677 (2006)(a case

“arises under federal law” if “a well-pleaded complaint establishes

either that federal law creates the cause of action or that the

plaintiff’s right to relief necessarily depends on resolution of a

substantial question of federal law.”).

(1) Federal causes of action. American Well Works Co. v.

Layne & Bowler Co., 241 U.S. 257 (1916) (Holmes, J.) ("A

suit arises under the law that creates the cause of action").

(2) Vindication of right under state law necessarily turns on

some construction of federal law. Smith v. Kansas City Title

& Trust Co., 255 U.S. 180 (1921). Cf. Metropolitan Life Ins.

Co. v. Taylor, 481 U.S. 58 (1987) (federal preemption).

(a) The mere presence of a federal issue in a state cause

of action does not automatically confer federal ques-

tion jurisdiction. Merrell Dow Pharmaceuticals, Inc.

v. Thompson, 478 U.S. 804, 813 (1986); Franchise

Tax Bd. v. Construction Laborers Vacation Trust,

463 U.S. 1 (1983); Moore v. Chesapeake & Ohio Ry.

Co., 291 U.S. 205 (1934).

(b) The federal question must be substantial and form an

essential part of the cause of action. Franchise Tax

Bd. v. Construction Laborers Vacation Trust, 463

U.S. 1 (1983); Gully v. First Nat'l Bank, 299 U.S. 109

(1936); Smith v. Grimm, 534 F.2d 1346 (9th Cir.),

cert. denied, 429 U.S. 980 (1976).

B-II-4

b) "Well-pleaded complaint" rule: In determining whether a case arises

under federal law, a court generally is confined to the well-pleaded

allegations of the plaintiff's complaint. Merrell Dow

Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1987); see

also, Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) “Under the

longstanding well-pleaded complaint rule, however, a suit ‘arises

under’ federal law ‘only when the plaintiff's statement of his own

cause of action shows that it is based upon [federal law].’

Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152,

(1908). Federal jurisdiction cannot be predicated on an actual or

anticipated defense: ‘It is not enough that the plaintiff alleges some

anticipated defense to his cause of action and asserts that the

defense is invalidated by some provision of [federal law].’ Id.”;

International Primate Protection League v. Administrators of Tulane

Education Fund, 500 U.S. 72 (1991); Franchise Tax Bd. v.

Construction Laborers Vacation Trust, 463 U.S. 1 (1983).

(1) Federal question cannot simply be the basis of an anticipated

defense. Oklahoma Tax Commission v. Graham, 489 U.S.

838 (1989); Louisville & Nashville R.R. Co. v. Mottley, 211

U.S. 149 (1908).

(2) In declaratory judgment action, federal question jurisdiction

is lacking if the federal claim would arise only as a defense to

a state created action. Amsouth Bank v. Dale, 386 F.3d 763,

775 (6th Cir. 2004).

(3) However, complete preemption provides a limited exception

to the well pleaded complaint rule. That is “Congress may so

completely pre-empt a particular area that any civil complaint

raising this select group of claims is necessarily federal in

character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987). See also Grable & Sons Metal Products, Inc. v.

Darue Engineering & Manufacturing, 545 U.S.308 (2005)

(the meaning of a federal tax provision is an important

federal law issue that supports federal question jurisdiction in

this state quiet title action).

4. What constitutes federal law?

A. Constitution.

B. Statute.

C. Federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972).

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D. Executive regulations. Compare Farmer v. Philadelphia Elec. Co., 329

F.2d 3, 7-8 (3d Cir. 1964) (validly issued administrative regulations or

orders may be treated as “laws of the United States”) with Chaase v.

Chasen, 595 F.2d 59 (1st Cir. 1979) (customs circular concerning

employee overtime does not constitute one of the “laws of the United

States”) and Federal Land Bank v. Federal Intermediate Credit Bank,

727 F. Supp. 1055 (S.D. Miss. 1989) (financial directive by Farm Credit

Administration not a “law of the United States”).

E. Treaties. Compare Int’l Ins. Co. v. Caja Nacional De Ahorro Y Seguro,

293 F.3d 392 (7th

Cir. 2002)(holding that Panama Convention provided

independent federal question jurisdiction) with Chubb & Son, Inc. v.

Asiana Airlines, 214 F. 3d 301 (2d Cir. 2000)(holding that court lacks

subject matter jurisdiction in absence of treaty relationship between U.S.

and South Korea).

5. Elimination of the amount in controversy requirement.

a. Pub. L. No. 94-574, 90 Stat. 2721 (1976) -- Lawsuits against the

United States, any agency thereof, or any officer or employee in his

or her official capacity.

b. Pub. L. No. 96-486, 94 Stat. 2369 (1980) -- All lawsuits.

6. Federal question jurisdiction statute does not waive the Government's

sovereign immunity. See, e.g., Clinton County Com’rs v. U.S. Envtl.

Protection Agency, 116 F.3d 1018, 1022 (3rd

Cir. 1997); Gochnour v.

Marsh, 754 F.2d 1137, 1138 (5th Cir.), cert. denied, 471 U.S. 1057 (1985);

State of New Mexico v. Regan, 745 F.2d 1318 (10th Cir. 1984), cert. denied,

471 U.S. 1065 (1985).

C. The Tucker Act. 28 U.S.C. §§ 1346(a)(2), 1491.

1. The statutes:

a. "The district courts shall have original jurisdiction, concurrent with

the United States Court of Federal Claims, of . . . [a]ny . . . civil

action or claim against the United States, not exceeding $10,000 in

amount, founded either upon the Constitution, or any Act of

Congress, or any regulation of an executive department, or upon any

express or implied contract with the United States, or for liquidated

or unliquidated damages in cases not sounding in tort. . . ." 28

U.S.C. § 1346(a)(2) (“Little Tucker Act”).

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b. "The United States Court of Federal Claims shall have jurisdiction to

render judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or

unliquidated damages not sounding in tort. . . ." 28 U.S.C. §

1491(a)(1) (“Tucker Act”).

c. Amendments conferring bid protest jurisdiction. 28 U.S.C. §

1491(b)(1) – (4), as modified by “sunset provision” for district

court jurisdiction.

2. General.

a. Must be brought within 6 years of accrual of claim. 28 U.S.C. §

2501.

b. Monetary damages only in Court of Federal Claims (with exception

of bid protests.)

c. Jurisdictional statute only; confers no substantive rights for plaintiff.

In order to state a claim upon which relief may be granted, must

demonstrate independent “money-mandating” basis for relief sought:

(1) Contract (must demonstrate all elements of enforceable

contract.)

(2) Statute or regulation with mandatory provisions establishing

entitlement to money (military/ civilian personnel claims).

(3) Constitution (Fifth Amendment takings claims heard by

COFC).

(4) Not sounding in tort.

3. Concurrent jurisdiction of the district courts and the Court of Federal

Claims.

a. Claims not exceeding $10,000: district courts and Court of Federal

Claims have concurrent jurisdiction.

b. Claims exceeding $10,000: Court of Federal Claims has exclusive

jurisdiction.

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(1) The amount of a claim is the total amount of money the

plaintiff ultimately stands to recover in the case. Smith v.

Orr, 855 F.2d 1544 (Fed. Cir. 1988); Chabal v. Reagen, 822

F.2d 349 (3d Cir. 1987); Shaw v. Gwatney, 795 F.2d 1351

(8th Cir. 1986); Goble v. Marsh, 684 F.2d 12 (D.C. Cir.

1982).

-- Determined by the good-faith allegations of the plaintiff's

complaint. Id. See also Zumerling v. Devine, 769 F.2d 745

(Fed. Cir. 1985).

(2) Transfer to Court of Federal Claims under 28 U.S.C. § 1631.

State of New Mexico v. Regan, 745 F.2d 1318 (10th Cir.

1984), cert. denied, 471 U.S. 1065 (1985); Keller v. MSPB,

679 F.2d 220 (11th Cir. 1982).

(3) Waiver of claims in excess of $10,000. Zumerling v. Devine,

769 F.2d 745 (Fed. Cir. 1985); Goble v. Marsh, 684 F.2d 12

(D.C. Cir. 1982); Lichtenfels v. Orr, 604 F. Supp. 271 (S.D.

Ohio 1984).

c. Demands for monetary and nonmonetary relief: finding a Tucker Act

Claim.

(1) General rules:

(a) The federal courts will look beyond the facial

allegations of the complaint to determine what the

plaintiff hopes to acquire from the lawsuit. E.g.,

Mitchell v. United States, 930 F.2d 893 (Fed. Cir.

1991); Amoco Prod. Co. v. Hodel, 815 F.2d 352 (5th

Cir. 1987); Weeks Constr., Inc. v. Oglala Sioux Hsg.

Auth., 797 F.2d 668 (8th Cir. 1986). But see Gower

v. Lehman, 799 F.2d 925 (4th Cir. 1986) (court

looked to nature of plaintiff's cause of action rather

than relief requested).

(b) The plaintiff cannot hide a claim for money damages

by couching the claim in equitable terms. E.g.,

Denton v. Schlesinger, 605 F.2d 484 (9th Cir. 1979);

Polos v. United States, 556 F.2d 903 (8th Cir. 1977).

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(c) Where equitable or declaratory claim serves a

significant purpose independent of recovering money

damages, it does not necessarily fall under the Tucker

Act because it may later become the basis for a

money judgment. Duke Power Co. v. Carolina Envt'l

Study Group, 438 U.S. 59, 71 n.15 (1978); Hahn v.

United States, 757 F.2d 581 (3d Cir. 1985); Giordano

v. Roudebush, 617 F.2d 511 (8th Cir. 1980).

(d) A claim falls under the Tucker Act when the "prime

objective" of the plaintiff's suit is nontort money

damages from the United States. E.g., Fairview

Township v. United States EPA, 773 F.2d 517 (3d

Cir. 1985); United States v. City of Kansas City, 761

F.2d 605 (8th Cir. 1985); Powell v. Marsh, 560 F.

Supp. 636 (D.D.C. 1983).

(2) Distinguishing damages from specific relief or equitable

relief. See, Bowen v. Massachusetts, 487 U.S. 905 (1988)

(monetary relief, other than damages, may be an incident to

specific relief granted).

(3) Bifurcating the Tucker Act and nonmoney claims. Compare

Shaw v. Gwatney, 795 F.2d 1351 (8th Cir. 1986); Hahn v.

United States, 757 F.2d 581 (3d Cir. 1985), with Matthews v.

United States, 810 F.2d 109 (6th Cir. 1987); Keller v. MSPB,

679 F.2d 220 (11th Cir. 1982).

4. The Tucker Act and substantive rights to relief. United States v. Testan, 424

U.S. 392 (1976). See also Murphy v. United States, 993 F.2d 871 (Fed. Cir.

1993); Commonwealth of Mass. v. Departmental Grant Appeals Bd., 815

F.2d 778 (1st Cir. 1987); Maryland Dep't of Human Resources v.

Department of Health & Human Serv., 763 F.2d 1441 (D.C. Cir. 1985).

5. Appeal of Tucker Act cases.

a. General rule: Court of Appeals for the Federal Circuit has exclusive

jurisdiction over all appeals where the district court's jurisdiction is

based, in whole or in part, on the Tucker Act. 28 U.S.C. § 1295;

United States v. Hohri, 482 U.S. 64 (1987); Professional Managers'

Ass'n v. United States, 761 F.2d 740 (D.C. Cir. 1985); Parker v.

King, 935 F.2d 1174 (11th Cir. 1991), cert. denied 112 S. Ct. 3055

(1992); Trayco Inc. v. United States, 967 F.2d 97 (4th Cir. 1992);

Banks v. Garrett, 901 F.2d 1084 (Fed. Cir. 1990), cert. denied 498

U.S. 821 (1990); Sibley v. Ball, 924 F.2d 25 (1st Cir. 1991); Wronke

v. Marsh, 767 F.2d 354 (7th Cir. 1985).

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b. Exceptions:

(1) Tucker Act claim frivolous or exceeds the jurisdiction of the

district court. Empire Kosher Poultry, Inc. v. Hallowell, 816

F.2d 907 (3d Cir. 1987); Shaw v. Gwatney, 795 F.2d 1351

(8th Cir. 1986); Van Drasek v. Lehman, 762 F.2d 1065 (D.C.

Cir. 1985).

(2) Another statute independently confers jurisdiction. Van

Drasek v. Lehman, 762 F.2d 1065 (D.C. Cir. 1985). But cf.

Wronke v. Marsh, 767 F.2d 354 (7th Cir. 1985); Maier v.

Orr, 754 F.2d 973 (Fed. Cir. 1985).

(3) Regional court of appeals has already decided the case.

Squillacote v. United States, 747 F.2d 432 (7th Cir. 1984),

cert. denied, 471 U.S. 1016 (1985). But see Professional

Managers Ass'n v. United States, 761 F.2d 740 (D.C. Cir.

1985).

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D. The Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-2680.

1. The statute:

"[T]he district courts . . . shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages, . . . for injuries or loss

of property, or personal injury or death caused by the negligent or wrongful

act or omission of any employee of the government while acting within the

scope of his office or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred." 28 U.S.C. §

1346(b).

2. Jurisdictional prerequisites:

a. Administrative claim requirement. 28 U.S.C. § 2675; Lee v.

United States, 980 F.2d 1337 (10th Cir. 1992); Avila v. INS, 731

F.2d 616 (9th Cir. 1984).

b. Statute of limitations. 28 U.S.C. § 2401; McNeil v. United

States, 964 F.2d 647 (7th Cir. 1992), aff'd 113 S.Ct. 1980 (1993);

Conn v. United States, 867 F.2d 916 (6th Cir. 1989); GAF Corp. v.

United States, 818 F.2d 901 (D.C. Cir. 1987).

c. Strictly construed. Lee v. United States, 980 F.2d 1337 (10th Cir.

1992) (administrative claim requirement); Gould v. Dep't of Health

and Human Services, 905 F.2d 738 (4th Cir 1990); NcNeil v. United

States, 964 F.2d 647 (7th Cir 1992), aff'd, 508 U.S. 106 (1993).

3. Limitations.

a. Limited to the amount of the administrative claim. 28 U.S.C. §

2675(b). See Jackson v. United States, 730 F.2d 808, 810 (D.C. Cir.

1984).

b. Types of torts specifically excepted. 28 U.S.C. § 2680.

(1) Discretionary function.

(2) Intentional torts.

(3) Arising out of combatant activities.

(4) Arising in a foreign country.

c. State statutory limitations.

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E. Mandamus. 28 U.S.C. § 1361.

1. The statute: "The district courts shall have original jurisdiction of any action in

the nature of mandamus to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plaintiff."

2. Historical origins.

F. Habeas Corpus. 28 U.S.C. §§ 2241-2255.

1. The statute:

"(a) Writs of habeas corpus may be granted by the Supreme Court, any

justice thereof, the district courts and any circuit judge within their respective

jurisdictions. . . .

. . .

(c) The writ of habeas corpus shall not extend to a prisoner unless--

(1) He is in custody under or by color of the authority of the United

States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act

of Congress, or any order, process, judgment or decree of a court or judge of

the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties

of the United States."

-- 28 U.S.C. § 2241.

2. Jurisdictional prerequisites:

a. Custody: The petitioner must be in custody. 28 U.S.C. § 2241;

Maleng v. Cook, 490 U.S. 488 (1989); Wales v. Whitney, 114 U.S.

564 (1885).

(1) Types of custody.

(a) Confinement. E.g., Ex Parte Reed, 100 U.S. 13

(1879).

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(b) Involuntary military service. E.g., Parisi v. Davidson,

405 U.S. 34 (1972); Wiggins v. Secretary of the

Army, 946 F.2d 892 (5th Cir. 1991).

(2) Jurisdiction is not lost if the petitioner is subsequently

released. Carafas v. La Vallee, 391 U.S. 234 (1968); cf.

Hensley v. Municipal Court, 411 U.S. 345 (1973) (bail);

Jones v. Cunningham, 371 U.S. 236 (1963) (parole).

b. Venue: Petitioner’s presence within the territorial jurisdiction of the

district court jurisdiction is not an invariable prerequisite. Rather,

because the writ of habeas corpus does not act upon the person who

seeks relief, but upon the person who holds him in what is alleged to

be unlawful custody, a district court acts within its respective

jurisdiction as long as the custodian can be reached by service of

process. Rasul v. Bush, 542 U.S. 466 (2004). See also Rumsfeld v.

Padilla, 542 U.S. 426 (2004); Rooney v. Secretary of the Army, 405

F.3d 1029 (D.C. Cir. 2005).

G. Civil Rights Statutes. 28 U.S.C. § 1343.

"(a) The district courts shall have original jurisdiction of any civil action authorized

by law to be commenced by any person:

(1) To recover damages for injury to his person or property, or because of the

deprivation of any right or privilege of a citizen of the United States, by any act done

in furtherance of a conspiracy mentioned in section 1985 of Title 42;

(2) To redress the deprivation, under color of State law, statute, ordinance,

regulation, custom, or usage, of any right, privilege or immunity secured by the

Constitution of the United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of the United States.

(3) To recover damages or to secure equitable or other relief under any Act

of Congress providing for the protection of civil rights, including the right to vote."

-- 28 U.S.C. § 1343.

H. Other statutes granting jurisdiction.

I. Provisions often erroneously cited as jurisdictional grounds for federal lawsuits.

1. Administrative Procedure Act, 5 U.S.C. §§ 701-06. Califano v. Sanders, 430

U.S. 99 (1977).

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2. Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667 (1952).

III. JUSTICIABILITY.

A. Introduction.

1. Constitutional limits on federal jurisdiction.

a. Cases that raise certain subjects or involve certain parties. U.S.

Const. art. III, § 2.

b. "Cases" and "Controversies." Id.

2. Justiciability is the term of art employed to give expression to the dual

limitation imposed upon the federal courts by the "case and controversy"

doctrine. Flast v. Cohen, 392 U.S. 83 (1968).

a. Involves application of both constitutional limitations and prudential

concerns.

b. Two-pronged doctrine:

(1) Adversarial prong.

(2) Political question prong.

3. Justiciability and the role of the federal courts. Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803); Monaghan, Constitutional Adjudication: The

Who and When, 82 Yale L.J. 1363 (1973).

B. The Adversarial Prong

1. General.

2. Advisory opinions.

a. Definition. An advisory opinion is an answer to a hypothetical

question of law unconnected to any particular case.

b. Examples: Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792);

Correspondence of the Justices and Secretary of State Thomas

Jefferson (1793).

3. Ripeness.

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a. Definition: "[T]he conclusion that an issue is not ripe for

adjudication ordinarily emphasizes a prospective examination of the

controversy which indicates that future events may affect its structure

in ways that determine its present justiciability, either by making a

later decision more apt or by demonstrating directly that the matter is

not yet appropriate for adjudication by an article III court." L. Tribe,

American Constitutional Law 61 (2d Ed. 1988) (emphasis in the

original).

b. Rationale: Avoid premature adjudication of suits and protect

agencies from unnecessary judicial interference. Abbott

Laboratories v. Gardner, 387 U.S. 136 (1967), overruled on other

grounds, Califano v. Sanders, 430 U.S. 99 (1977). And avoid

“abstract disagreements over administrative policies, and also to

protect the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by

the challenging parties. Id., at 148-49. See also Nat’l Park

Hospitality Ass’n. v. Dept. of Interior, 538 U.S. 803 (2003).

c. Rule: In determining whether a case is ripe for adjudication, a court

must--

(1) Evaluate the fitness of the issues for judicial decision; and

(a) Is the agency action final?

(b) Are the issues legal or factual?

(c) Have administrative remedies been exhausted?

(d) What is the nature of the record created?

(2) Determine the hardship to the parties of withholding court

decision.

(a) What is the likelihood the challenged action will

affect the plaintiff?

(b) What is the nature of the consequences risked by the

plaintiff if affected by the action?

(c) Will the plaintiff be forced to alter conduct as a result

of the action?

d. Examples:

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(1) Pre-enforcement attacks on statutes or regulations. Compare

Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967), with

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

overruled other grounds Califano v. Sanders, 430 U.S. 99

(1977). See also Nat’l Park Hospitality Ass’n. v. Dept. of

Interior, 538 U.S. 803 (2003).

(2) Challenges to pending administrative or judicial proceedings.

Hastings v. Judicial Conference, 770 F.2d 1093 (D.C. Cir.

1985); Watkins v. United States Army, No. C-81-1065R

(W.D. Wash. Oct. 23, 1981).

(3) Threat to commit military forces without congressional

authorization. Ange v. Bush, 752 F. Supp. 509 (D.D.C.

1990); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).

4. Mootness.

a. Definition: "[M]ootness looks primarily to the relationship between

past events and the present challenge in order to determine whether

there remains a 'case or controversy' that meets the article III test of

justiciability." L. Tribe, American Constitutional Law 62 (1988).

b. General rule: There is no case or controversy once the issues in a

lawsuit have been resolved.

c. Test: A case becomes moot when--

(1) "[I]t can be said with assurance that 'there is no reasonable

expectation . . .' that the alleged violation will recur," and

"interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation." County of

Los Angeles v. Davis, 440 U.S. 625, 635 (1979); See also

McFarlin v. Newport Special School District, 980 F.2d 1208

(8th Cir. 1992).

d. Examples:

(1) Save the Bay, Inc. v. United States Army, 639 F.2d 1100 (5th

Cir. 1981).

(2) Quinn v. Brown, 561 F.2d 795 (9th Cir. 1977).

(3) Ringgold v. United States, 553 F.2d 309 (2d Cir. 1977).

(4) Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985).

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(5) Oakville Development Corp. v. FDIC, 986 F.2d 611 (1st Cir.

1993).

(6) Ethredge v. Hail, 996 F.2d 1173 (11th Cir. 1993).

e. Exceptions:

(1) Capable of repetition, yet evading review. Southern Pacific

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

(a) Test (Weinstein v. Bradford, 423 U.S. 147, 149

(1975)):

i) The challenged action is too short in its

duration to be fully litigated prior to its

cessation or expiration; and

ii) There is a reasonable expectation the same

complaining party will be subject to the same

action again.

(b) Examples: Compare Roe v. Wade, 410 U.S. 113

(1973) and Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir.

1991) (No. 91-5019), with Flynt v. Weinberger, 588

F. Supp. 57 (D.D.C. 1984), aff'd, 762 F.2d 134 (D.C.

Cir. 1985) and Nation Magazine v. Department of

Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991).

(2) Voluntary cessation.

(a) Rule: A case is not made moot merely because a

defendant voluntarily ceases his allegedly unlawful

conduct. United States v. W.T. Grant Co., 345 U.S.

629 (1953).

(b) Example: Berlin Democratic Club v. Rumsfeld, 410

F. Supp. 144 (D.D.C. 1976).

(3) Collateral consequences.

(a) Rule: A case is not moot where, even though

stopped, the government's allegedly unlawful conduct

leaves lasting adverse consequences. Sibron v. New

York, 392 U.S. 40 (1968).

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(b) Example: Connell v. Shoemaker, 555 F.2d 483 (5th

Cir. 1977).

(4) Class actions.

(a) Mootness of the class representative's claim after the

class has been certified: the case is not moot. Sosna

v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976).

(b) Mootness of the class representative's claim after

motion for class certification has been made and

denied, but before appeal from the denial: the case is

not moot. United States Parole Comm'n v. Geraghty,

445 U.S. 388 (1980).

i) The Supreme Court has proscribed the

interlocutory appeal of denials of class

certification. Gardner v. Westinghouse

Broadcasting Co., 437 U.S. 478 (1978);

Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978).

ii) The Supreme Court has allowed class

members to intervene to appeal the denial of

class certification after the named plaintiff’s

claim has been fully satisfied. United

Airlines, Inc. v. McDonald, 432 U.S. 385

(1977).

(c) Mootness of the class representative's claim before

class certification: the case may be moot.

Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128

(1975).

(d) Mootness of the claims of the members of the class:

the case may be moot or the class may be realigned.

Kremens v. Bartley, 431 U.S. 119 (1977).

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5. Standing.

a. General.

(1) Focuses primarily on the party seeking to get his complaint

before the federal court, and only secondarily on the issues

raised.

(2) Subsumes both constitutional and prudential considerations.

b. Constitutional Requirements.

(1) General rule: To establish standing, a plaintiff must

demonstrate--

(a) That he has personally suffered some actual or

threatened injury as a result of the putatively illegal

conduct of the defendant. [Is the injury too abstract,

or otherwise not appropriate, to be considered

judicially cognizable?] Meese v. Keene, 481 U.S. 465

(1987); George v. State of Texas, 788 F.2d 1099 (5th

Cir.), cert. denied, 479 U.S. 866 (1986).

i) An asserted right to have the government act

in accordance with law does not confer stand-

ing. Allen v. Wright, 468 U.S. 737 (1984);

Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208 (1978).

ii) Mere interest of plaintiff in an issue does not

confer standing. Diamond v. Charles, 476

U.S. 54 (1986); Sierra Club v. Morton, 405

U.S. 727 (1972); International Primate

Protection League v. Institute for Behavioral

Research, Inc., 799 F.2d 934 (4th Cir. 1986).

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(b) That the injury is traceable to the acts or omissions of

the defendant (causation requirement). [Is the line of

causation between the illegal conduct and injury too

attenuated?] Warth v. Seldin, 422 U.S. 490 (1975);

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

26 (1976).

(c) That the plaintiff's stake in the controversy is

sufficient to ensure that the injuries claimed will be

effectively redressed by a favorable court decision.

[Is the prospect of obtaining relief from the injury as

a result of a favorable ruling too speculative?] Linda

R.S. v. Richard D., 410 U.S. 614 (1973).

(2) Illustrative cases: Compare Laird v. Tatum, 408 U.S. 1

(1972), with Berlin Democratic Club v. Rumsfeld, 410 F.

Supp. 144 (D.D.C. 1976).

c. Taxpayer Standing.

(1) Test: To establish standing as a taxpayer, a plaintiff must

demonstrate--

(a) A nexus between his taxpayer status and the type of

legislation being challenged. Taxpayer standing is

only proper where the plaintiff challenges exercises

of congressional power under the taxing and spending

clause of the Constitution. U.S. Const. art. I, § 8.

(b) A nexus between the taxpayer status and the precise

nature of the constitutional infringement alleged. The

plaintiff must show a specific constitutional limitation

on the taxing and spending power of Congress. Flast

v. Cohen, 392 U.S. 83, 102-103 (1968); Frothingham

v. Mellon, 262 U.S. 447 (1923).

(2) Illustrative case: Katcoff v. Marsh, 582 F. Supp. 468

(E.D.N.Y. 1984), aff'd, in part 755 F.2d 223 (2d Cir. 1985).

(3) Variations in approach:

(a) Challenge to congressional exercise under the

property clause, U.S. Const. art. I, § 3, cl. 2. Valley

Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464

(1982).

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(b) Challenge under the incompatibility clause,

U.S. Const. art. I, § 9, cl. 7. Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208 (1974).

(c) Challenge under the accounting clause, U.S.

Const. art. I, § 9, cl. 7. United States v. Richardson,

418 U.S. 166 (1974)

(d) Challenge under foreign affairs powers, U.S.

Const. art. I, § 10, cl. 1. Americans United for

Separation of Church & State v. Reagan, 786 F.2d

194 (3d Cir. 1986).

(e) Challenge under war powers and

Commander-in-Chief clauses, U.S. Const. art. I, § 8,

cl. 11 and art. II, § 2. Pietsch v. Bush, 755 F.Supp. 62

(E.D.N.Y.), aff’d, 935 F.2d 1278 (2d Cir. 1991).

d. Citizen Standing. Schlesinger v. Reservists Comm. to Stop the War,

418 U.S. 208 (1974); Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y.),

aff'd, 935 F.2d 1278 (2d Cir. 1991).

e. Prudential Standing Considerations.

(1) Jus tertii.

(a) General rule: A plaintiff may not claim standing to

vindicate the constitutional rights of third parties.

Tileston v. Ullman, 318 U.S. 44 (1943); Tyler v.

Judges of Ct. of Registration, 179 U.S. 405 (1900);

Monaghan, Third Party Standing, 84 Colum. L. Rev.

277 (1984).

i) Corollary: A plaintiff may only challenge a

statute or regulation in the terms in which it is

applied to him. Parker v. Levy, 417 U.S. 733

(1974).

ii) Rationale: (A) courts should not make

unnecessary constitutional adjudications, and

(B) the holders of constitutional rights are the

best parties to assert the rights. Singleton v.

Wulff, 428 U.S. 106 (1976).

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(b) Exceptions:

i) Countervailing policies. See, e.g., Carey v.

Population Serv. Int'l, 431 U.S. 678 (1977);

Singleton v. Wulff, 428 U.S. 106 (1976).

ii) Statute confers third-party standing. See, e.g.,

Havens Realty Corp. v. Coleman, 455 U.S.

363 (1982); Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91 (1979).

(2) "Generalized grievances" shared in substantially equal

measure by all or a large class of citizens. Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208 (1974);

Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y.), aff'd, 935 F.2d

1278 (2d Cir. 1991).

(3) Interest within the "zone of interests" arguably protected or

regulated by the law in question. Lujan v. National Wildlife

Foundation, 504 U.S. 555 (1992); Clarke v. Securities Indus.

Ass'n, 479 U.S. 388 (1987); Association of Data Processing

Serv. Orgs. v. Camp, 397 U.S. 150 (1970); National

Federation of Fed. Employees v. Cheney, 883 F.2d 1038

(D.C. Cir.), reh'g denied, 892 F.2d 98 (D.C. Cir. 1989), cert.

denied, 110 S. Ct. 3214 (1990); Hadley v. Secretary of the

Army, 479 F. Supp. 189 (D.D.C. 1979).

f. Associational Standing.

(1) Suits for injuries suffered by the association. Havens Realty

Corp. v. Coleman, 455 U.S. 363 (1982); NAACP v.

Alabama, 357 U.S. 449 (1958).

(2) Suits for injuries suffered by members. International Union,

UAW v. Brock, 477 U.S. 274 (1986); Hunt v. Washington

Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1976).

See also Randolph-Sheppard Vendors v. Weinberger, 795

F.2d 90 (D.C. Cir. 1986). For an association to have standing

to sue on behalf of its members, it must show following:

(a) The conduct challenged is injurious to its members;

(b) The claim is germane to the association's purposes;

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(c) The cause can proceed without the participation of

the individual members affected by the challenged

conduct.

C. The Political Question Prong.

1. Description of the Doctrine.

a. "Prominent on the surface of any case held to involve a political

question is found [1] a textually demonstrable constitutional commit-

ment of the issue to a coordinate political department; or [2] a lack of

judicially discoverable or manageable standards for resolving it; or

[3] the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion; or [4] the

impossibility of a court's undertaking independent resolution without

expressing lack of the respect due coordinate branches of the

government; or [5] an unusual need for unquestioning adherence to a

political decision already made; or [6] the potentiality of

embarrassment from multifarious pronouncements by various

departments on one question." Baker v. Carr, 369 U.S. 186, 217

(1962).

b. "[T]he doctrine incorporates three inquiries: (i) Does the issue

involve resolution of questions committed by the text of the

Constitution to a coordinate political branch of Government? (ii)

Would resolution of the question demand that a court move beyond

areas of judicial expertise? (iii) Do prudential considerations

counsel against judicial intervention?" Goldwater v. Carter, 444

U.S. 996, 998 (1980) (Powell, J., concurring).

2. Illustrative cases:

a. Organization, training, and weaponry of the armed forces. Gilligan

v. Morgan, 413 U.S. 1 (1973).

b. Commitment and use of military forces. Ange v. Bush, 752 F. Supp.

509 (D.D.C. 1990); Nejad v. United States, 724 F. Supp. 753 (C.D.

Cal. 1989); In re Korean Air Lines Disaster of Sept. 1, 1983, 597 F.

Supp. 613 (D.D.C. 1984); Greenham Women Against Cruise

Missiles v. Reagan, 591 F. Supp. 1332 (S.D.N.Y. 1984), aff'd, 755

F.2d 34 (2d Cir. 1985); Conyers v. Reagan, 578 F. Supp. 324

(D.D.C. 1984), appeal dismissed, 765 F.2d 1124 (D.C. Cir. 1985);

Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd, 720 F.2d

1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984);

Rappenecker v. United States, 509 F. Supp. 1024 (N.D. Cal. 1980);

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973). But see

Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).

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c. Establishment of diplomatic relations. Phelps v. Reagan, 812 F.2d

1293 (10th Cir. 1987); Americans United for Separation of Church &

State v. Reagan, 786 F.2d 194 (3d Cir.), cert. denied, 479 U.S. 1012

(1986).

d. Repatriation of POW's. Smith v. Reagan, 637 F. Supp. 964

(E.D.N.C. 1986); Dumas v. President of the United States, 554 F.

Supp. 10 (D. Conn. 1982).

e. Relief from or placement in command. Wood v. United States, 968

F.2d 738 (8th Cir. 1992).

f. Setting standards at service academies. Green v. Lehman, 544 F.

Supp. 260 (D. Md. 1982), aff'd, 744 F.2d 1049 (4th Cir. 1984).

g. Establishing promotion quotas. Blevins v. Orr, 553 F. Supp. 750

(D.D.C. 1982), aff'd, 721 F.2d 1419 (D.C. Cir. 1983).

h. Conduct of military intelligence activities. Laird v. Tatum, 408 U.S.

1 (1972); United Presbyterian Church v. Reagan, 738 F.2d 1375

(D.C. Cir. 1984).

i. Making political appointments. National Treasury Employees Union

v. Bush, 715 F. Supp. 405 (D.D.C. 1989).

j. Enforcement of accession standards. Whittle v. United States, 7 F.3d

1259 (6th Cir. 1993).

k. President’s designation of pharmaceutical plant in Sudan as enemy

property. El-Shifa Pharmaceutical Industries Co. v. United States,

378 F.3d 1346 (Fed. Cir. 2004).

l. Implementation of BRAC recommendations. Gregoire v. Rumsfeld,

463 F.Supp.2d 1209 (W.D. Wash. 2006).

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FEDERAL LITIGATION COURSE

TAB C

PLEADINGS AND MOTION PRACTICE

I. INTRODUCTION.

A. Background.

B. Purpose of the Federal Rules of Civil Procedure.

II. PAPER MANAGEMENT IN THE FEDERAL COURTS.

A. Pleadings, Motions, and Other Papers.

1. Pleadings. Fed. R. Civ. P. 7(a).

a. "Pleadings" are limited to the complaint, answer, answer to

a counterclaim designated as a counterclaim, answer to a

crossclaim, third-party complaint, and answer to a third-

party complaint.

b. No other "pleadings" are allowed, except the court can

order a reply to an answer..

c. All of the above can be considered under the general

heading of complaint, answer, and reply.

d. Definition becomes important when taken in context of

other rules. E.g., Fed. R. Civ. P. 12(c) which provides for

judgment on the pleadings; Fed. R. Civ. P. 15(a), which

allows a party to amend once as of course any time within

21 days of serving the pleading or (if the pleading is one to

which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of

a motion under Rule 12(b), (e), or (f), whichever is earlier.

2. Motions and Other Papers. Fed. R. Civ. P. 7(b).

a. A motion is an application to the court for an order.

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b. Must be in writing (unless made during a hearing or trial),

must state with particularity the grounds, and must set forth

the relief or order sought.

c. Fed. R. Civ. P. 7(b)(2) provides that the rules as to caption

and other matters of form apply to motions and other

papers.

d. Local court rules may substantially impact motion practice

by limiting number of pages, setting time requirements for

notice, response, etc.

B. Signing Pleadings, Motions, and Other Papers. Fed. R. Civ. P. 11.

1. Background.

a. Prior to 1 August 1983, the signature of an attorney on a

pleading or motion certified that to the best of the signer's

belief "there is good ground to support it."

b. Whether a particular document was signed in violation of

Rule 11 required the court to conduct a subjective inquiry

into the lawyer's knowledge and motivation for signing.

"Good faith" was a defense, and sanctions were imposed

only upon a determination that the lawyer acted willfully or

in bad faith.

c. Sanctions were seldom imposed, and frivolous pleadings

that caused delay and increased the cost of litigation were

becoming more numerous. In 1983, Rule 11 was amended

to address these problems.

d. The 1993 amendments to the rule were intended to remedy

problems that arose in interpretation of the rule but retained

the principle that attorneys and pro se litigants have an

obligation to the court to refrain from conduct that

frustrates the aims of Rule 1 to “secure the just, speedy, and

inexpensive determination of every action.”

2. Requirements of Rule 11.

a. Every pleading, motion, or other paper shall be signed by

an attorney of record. If the party is not represented by an

attorney, the party must sign. The paper must state the

signer’s address, e-mail address, and phone number; there

need not be an affidavit attached.

b. Signature certifies that:

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(1) the person signing has read the document [While not

expressly stated in the rule, the obligations imposed by

the rule obviously require that a signer first read the

document.];

(2) to the best of the person’s knowledge, information, and

belief, formed after reasonable inquiry, it is well

grounded in fact (has or is likely to have evidentiary

support) and is warranted by existing law or a good

faith (non-frivolous) argument for the extension,

modification, or reversal of existing law or the

establishment of new law; and

(3) it is not interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless

increase in the cost of litigation.

c. Current rule imposes an objective standard by which to

measure the actions of the litigants. "Simply put,

subjective good faith no longer provides the safe harbor it

once did." Eastway Construction Corp. v. City of New

York, 762 F.2d 243 (2d Cir. 1985) (Decided before Rule 11

was revised in 1993 to include crucial language that “the

court may impose an appropriate sanction.” Fed.R.Civ.P.

11(c)(1); see Ipcon Collections LLC v. Costco Wholesale

Corp., 698 F.3d 58 (N.Y. 2012). Accord Ridder v. City of

Springfield, 109 F.3d 288 (6th

Cir. 1997) (but see Hamil v.

Mobex Managed Services Co., 208 F.R.D. 247 (N.D.Ind.

2002)); F.D.I.C. v. Calhoun, 34 F.3d 1291 (5th

Cir. 1994);

Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113 (7th

Cir. 1994); Blackhills Institute of Geological Research v.

South Dakota School of Mines and Technology, 12 F.3d

737 (8th

Cir. 1993); Paganucci v. New York, 993 F.2d 310

(2d Cir. 1993) (The standard is whether a reasonably

competent attorney would have acted similarly.).

d. Whether the required inquiry into the law and the facts of

the case is "reasonable" will depend upon the facts and

circumstances of the particular case. The following factors

have been considered by the courts to determine the

appropriateness of the pre-signature inquiry:

(1) As to the facts:

(a) the time available for investigation;

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(b) the extent of the attorney's reliance upon the

client for the factual basis of the document;

(c) the feasibility of a pre-filing investigation;

(d) whether the attorney accepted the case on

referral from another attorney;

(e) the complexity of the issues; and

(f) the extent to which development of the facts

underlying the claim requires discovery.

Childs v. State Farm Mutual Automobile Insurance

Co., 29 F.3d 1018, 1026 (5th Cir. 1994). Practice

Point: Relying on labor counselor filings to respond

to Complaint could be violation of duty under Rule

11: In re Connetics Corp. Secs. Litig., 2008 U.S.

Dist. LEXIS 9634 (N.D. Cal. Jan. 28, 2008) (Rule

11 violation if attorney relies on previously filed

complaint without conducting his own inquiry into

propriety of allegations/defenses; duty to inquire is

non-delegable).

(2) As to the law:

(a) the time available to prepare the document

before filing;

(b) the plausibility of the legal view contained

in the document;

(c) whether the litigant is pro se; and

(d) the complexity of the legal issues involved.

Thomas v. Capital Sec. Services, Inc., 836 F.2d

866, 875-76 (5th Cir. 1988) (en banc). See, e.g.,

Rode v. United States, 812 F.Supp. 45 (M.D. Pa.

1992) (Rule 11 sanctions not imposed against

plaintiff’s counsel in FTCA suit against U.S. where

plaintiff’s counsel cited court opinions, albeit from

districts outside circuit, in support of more liberal

approach to construing jurisdictional prerequisites

to FTCA action). Cf. Knipe v. United States, 151

F.R.D. 24 (N.D.N.Y. 1993) (FTCA action against

FAA raised frivolous arguments and was brought

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for improper purpose, warranting imposition of

Rule 11 sanctions on plaintiff’s attorney).

e. The courts were split on whether compliance is measured at

the time the document is signed and filed or if there is a

continuing duty to amend when additional information

reveals that the claim is frivolous or that the allegations are

unsupported. Compare Thomas v. Capital Sec. Services,

Inc., 836 F.2d 866 (5th Cir. 1988) (no continuing duty);

with Kale v. Combined Ins. Co. of America, 861 F.2d 746

(1st Cir. 1988) (continuing duty) and Skidmore Energy,

Inc. v. KPMG, 455 F.3d 564 (5th Cir. 2006) (declining to

extend the no duty rule proposed in Thomas). The 1993

amendments to the rule make clear that although a formal

amendment to pleadings may not be required, Rule 11 is

violated by continuing to assert (“later advocating”) claim

or defense after learning that it has no merit.

3. Sanctions for Violations of Rule 11.

a. “If, after notice and a reasonable opportunity to respond,

the court determines that [Rule 11] has been violated, the

court may impose an appropriate sanction on any attorney,

law firm, or party that violated the rule or is responsible for

the violation." Fed. R. Civ. P. 11(c).

b. Sanctions can be imposed upon the attorneys, the law

firms, or the parties that have violated the rule or who are

responsible for the violation. (Usually the person signing,

filing, submitting or advocating a document.) “Absent

exceptional circumstances, a law firm shall be held jointly

responsible for violations committed by its partners,

associates, and employees.” Fed. R. Civ. P. 11(c)(1).

Sanctions may be imposed upon pro se litigants who

violate Rule 11, although the court should consider

plaintiff’s pro se status in determining whether the filing in

question was reasonable. Patterson v. Aiken, 841 F.2d 386

(11th Cir. 1988); Brown v. Consolidated Freightway, 152

F.R.D. 656 (N.D. Ga. 1993). Cf. Clark v. Green, 814 F.2d

221 (5th Cir. 1987) (imposing sanctions under Rule 38 of

Fed. R. App. P. against pro se litigant for totally frivolous

appeal).

c. Sanctions may include: striking the offending paper;

issuing an admonition, reprimand, or censure; requiring

participation in seminars or other education programs;

ordering a fine payable to the court; referring the matter to

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disciplinary authorities (or, in the case of government

attorneys, to the Attorney General, Inspector General, or

agency head), etc. Also, the Court may award reasonable

expenses and attorney’s fees to the prevailing party. See

Blue v. U.S. Dept. of Army, 914 F.2d 525 (4th Cir. 1990)

(government awarded costs and attorneys’ fees for

plaintiff’s bad-faith pursuit of employment discrimination

action), cert. denied 499 U.S. 959 (1991).

d. Compensatory awards should be limited to unusual

circumstances. Non-monetary sanctions are proper and

suggested. Sanctions are "limited to what is sufficient to

deter repetition of such conduct or comparable conduct by

others similarly situated.” Fed. R. Civ. P. 11(c)(2). See Sato

v. Plunkett, 154 F.R.D. 189 (N.D. Ill. 1994).

e. Safe harbor provision: Motion for sanctions shall be made

and served separately and may be filed with the court only

if the challenged paper, claim, or defense is not withdrawn

or corrected within 21 days after service. Fed. R. Civ. P.

11(c)(2).

f. Ordinarily, a motion for sanctions should be served

promptly after the inappropriate paper is filed, and, if

delayed too long, may be viewed as untimely. See Retail

Flooring Dealers of America, Inc. v. Beaulieu of America,

LLC, 339 F.3d 1146 (9th Cir. 2003) (sanctions award

precluded because motion was served after complaint had

been dismissed and the period within which an amended

complaint could be filed had expired).

g. Rule 11 motions should not be made or threatened for

minor, inconsequential violations of the standards

prescribed by the rule.

4. Rule 11 does not apply to discovery. Fed. R. Civ. P. 11(d).

However, Rules 26(g) and 37 establish similar certification

standards and sanctions that apply to discovery disclosures,

requests, responses, objections, and motions.

C. Commencing the Action.

1. "A civil action is commenced by filing a complaint with the court."

Fed. R. Civ. P. 3.

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2. "Filing" is accomplished by complying with local rules as to

delivery of the requisite number of copies of the complaint to the

clerk of court's office and having the complaint logged into the

court's docket file. A pleading, motion, or other paper is not

"filed" until received by the clerk; depositing a document in the

mail is not "filing." Cooper v. Ashland, 871 F.2d 104 (9th Cir.

1989); Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir.

1986). Note: Rule 5(d)(3) is codification of current local rules

from various courts allowing electronic filing procedures.

3. Under federal question jurisdiction, the statute of limitations is

tolled by the filing of the complaint with the court. West v.

Conrail, 481 U.S. 35 (1987) (but see Prazak v. Local 1 Intern.

Union of Bricklayers & Allied Crafts, 233 F.3d 1149 (9th Cir.

2000), in which the case originated in state court and subsequently

removed to federal court); Sentry Corp. v. Harris, 802 F.2d 229

(7th Cir. 1986), cert. denied, 481 U.S. 1004 (1987). If jurisdiction

is based upon diversity of citizenship and the state statute specifies

that the period of limitations is tolled only upon service of process,

the state rule will apply. Walker v. Armco Steel Corp., 446 U.S.

740 (1980).

D. Service of Process.

1. "On or after the filing of the complaint, the plaintiff may present a

summons to the clerk for signature and seal. If the summons is

properly completed, the clerk shall sign, seal, and issue it to the

plaintiff for service on the defendant." Fed. R. Civ. P. 4(b).

2. The summons is signed by the clerk, under the seal of the court. It

should set out the name of the parties, the name of the court, and

the name and address of the plaintiff or his attorney, if represented.

It also should state the time within which the defendant must

appear and defend, and warns that failure to respond in a timely

fashion will result in default. See Fed. R. Civ. P. 4(a). Practice

Point: Clerks of Court routinely err in applying the 21-day

response time as opposed to the 60-day response time for United

States and federal agencies as stated in Fed. R. Civ. P.

12(a)(1)&(2). Also, a summons must be issued for each defendant

to be served. Fed. R. Civ. P. 12(b).

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3. If the plaintiff fails to serve the summons and complaint within

120 days of commencing the action, the court "must" (upon motion

or on its own initiative) dismiss the action without prejudice or

direct that service be effected within a specified time unless

plaintiff can show good cause why service was not made within

the period specified. Fed. R. Civ. P. 4(m). Momah v. Albert

Einstein Medical Center, 158 F.R.D. 66 (E.D. Pa. 1994); See also

Lovelace v. Acme Markets, Inc., 820 F.2d 81 (3d Cir.), cert.

denied, 484 U.S. 965 (1987) (but see Crutchley v. Sun Dog

Marina, Inc., 2011 WL 6071807 (D.N.J. Dec 05, 2011), which did

not follow Lovelace on state law grounds); Townsel v. Contra

Costa County, Cal., 820 F.2d 319 (9th Cir. 1987). Ignorance of

Rule 4(m) by pro se litigants does not excuse their failure to serve

within 120 days. Lowe v. Hart, 157 F.R.D. 550 (M.D. Fla. 1994).

4. Serving the United States.

a. Pursuant to Rule 4(i)(1), service on the United States shall

be effected:

(1) By delivering a copy of the summons and complaint

to the United States attorney for the district in

which the action is brought; or to an assistant

United States attorney or designated clerical

employee who has been designated by the United

States attorney in writing to the court to receive

service of process, or by sending a copy of the

summons and complaint by registered or certified

mail addressed to the civil process clerk at the

office of the United States Attorney; and,

(2) By also sending a copy of the summons and com-

plaint by registered or certified mail to the Attorney

General in Washington; and,

(3) If attacking the validity of an order of an officer or

agency of the United States not made a party, by

sending a copy of the summons and complaint by

registered or certified mail to such officer or

agency.

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b. Practice Point - Is Fed Ex registered or certified mail?

Coulter v. DHS, 2008 U.S. Dist. LEXIS 73014 (D.N.J.

2008) (No). But see Tracphone Wireless, Inc. v.

Washington, 2013 WL 3974709 (court granted plaintiff’s

unopposed motion for alternative service of process).

c. Practice Point - Is service proper if hand deliver to any

AUSA? Constien v. U.S. , 2010 WL 2618536 (W.D. Okla.

2010) (No).

d. Note that the waiver of service provisions of Rule 4(d),

discussed below, are not applicable to the United States as

a defendant.

5. Pursuant to Rule 4(i)(2), service on an officer (in his or her official

capacity only) or an agency of the United States shall be effected:

a. By serving the United States (meaning service on the U.S.

Attorney and the Attorney General as discussed above);

and,

b. By sending a copy of the summons and complaint by

registered or certified mail to the named officer or agency.

Service beyond the territorial limits of the forum state may

be authorized by 28 U.S.C. § 1391(e).

c. Note that the waiver of service provisions of Rule 4(d),

discussed below, are not applicable to United States

officers of agencies sued in their official capacity.

d. The court shall allow a plaintiff who fails to effect service

properly on a United States agency or officer served in

his/her official capacity a “reasonable time" to cure defects

in service, provided plaintiff has effected service on either

the U.S. Attorney or the Attorney General. Fed. R. Civ. P.

4(i)(4).

6. Pursuant to Rule 4(i)(3), service on an officer or an employee of

the United States (in his or her individual capacity – whether or not

the officer or employee is sued also in an official capacity) for

“acts or omissions occurring in connection with the performance of

duties on behalf of the United States” shall be effected:

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a. By serving the United States (meaning service on the U.S.

Attorney and the Attorney General as discussed above);

and,

b. By serving the officer or employee in the manner

prescribed by Rule 4 (d), (e), (f), or (g).

c. Note that the waiver of service provisions of Rule 4(d),

discussed below, do apply.

d. Includes former employees.

e. The court shall allow a plaintiff who fails to effect service

properly on the United States “reasonable time" to cure

defects in service required by Rule 4(i)(2-3), provided

plaintiff has effected service on the officer or employee of

the United States sued in an individual capacity. Fed. R.

Civ. P. 4(i)(4).

7. Service on an Individual Defendant – Rule 4(e).

a. Service upon individuals within a judicial district of the

United States is effected:

(1) By delivering a copy of the summons and complaint

to him/her personally or by leaving copies at his/her

house or usual place of abode with some person of

suitable age and discretion who also resides at the

house or by delivering copies to an agent authorized

by appointment or by law to receive service of

process (Fed. R. Civ. P. 4(e)(2)); or,

(2) By serving the defendant in accordance with the law

of the state wherein the district court sits. Fed. R.

Civ. P. 4(e)(1); or,

(3) By obtaining the defendant’s waiver of service as

specified in Rule 4(d).

b. Service upon individuals in a foreign country is effected:

(1) By any internationally agreed means reasonably

calculated to give notice, such as those means

authorized by the Hague Convention on the Service

Abroad of Judicial and Extrajudicial Documents

(entered into force for the United States on February

10, 1969); or

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(2) If there is no internationally agreed means of

service or the applicable international agreement

allows other means of service (provided that such

method of service is reasonably calculated to give

notice):

(a) in the manner prescribed by the law of the

foreign country for service in that country;

(b) as directed by a foreign authority in

response to a letter rogatory or letter of

request; or

(c) unless prohibited by law of the foreign

country, by delivery to the individual

personally, or by any form of mail requiring

a signed receipt, addressed and dispatched

by the clerk of the court to the party to be

served (Fed. R. Civ. P. 4(f)(2)); or

(3) By other means not prohibited by international

agreement as may be directed by the court. Fed. R.

Civ. P. 4(f)(3).

(4) Service may also be effected by obtaining the

defendant’s waiver of service, as specified in Rule

4(d).

c. Waiver of Service. Fed. R. Civ. P. 4(d).

(1) Plaintiff sends notice, request for waiver, and copy

of the complaint by reliable means, along with an

extra copy and a prepaid means of compliance.

Must allow the defendant a reasonable time to

return the waiver, which shall be at least 30 days

from the date on which the request is sent (60 days

if the defendant is outside the United States).

(2) Defendant bears costs for effecting formal service

unless "good cause" shown for failure to consent to

waiver.

(3) A defendant that waives formal service is entitled to

60 days after request for waiver sent to answer the

complaint (90 days if the defendant is outside the

United States).

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8. Service of process on the installation. (AR 27-40, Chapter 2)

a. Commanders and officials will not evade service of process

in actions brought against the U.S. or themselves

concerning official duties. Reasonable restriction on the

service of process on the installation may be imposed.

b. If acceptance of service would interfere with duty--appoint

agent or representative to accept service.

III. COMPLAINT AND ANSWER.

A. Complaint.

1. Format.

a. "Every pleading must have a caption with the court’s name,

a title, a file number, and a Rule 7(a) designation." Fed. R.

Civ. P. 10(a).

b. The caption of the complaint must contain the names of all

parties; subsequent pleadings need only contain the name

of the first party on each side with appropriate indication of

other parties (such as “et al.”). Fed. R. Civ. P. 10(a).

c. Averments must be set forth in separate numbered

paragraphs. Claims founded upon separate transactions or

occurrences should be set forth in separate counts. Fed. R.

Civ. P. 10(b).

2. Contents. Fed. R. Civ. P. 8(a).

a. A short and plain statement of the grounds for the court's

jurisdiction.

b. A short and plain statement of the claim showing that the

pleader is entitled to the relief sought.

c. A demand for judgment for the relief the plaintiff deems

himself entitled. Alternative and various types of relief

may be demanded in the same complaint.

d. Courts may liberally construe the pleadings of pro se

litigants.

B. Answer.

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1. Format. Fed. R. Civ. P. 10.

2. Contents. Fed. R. Civ. P. 8(b)&(c).

a. "A party must state in short and plain terms its defenses to

each claim asserted. . . ." Fed. R. Civ. P. 8(b).

(1) Rule 8(c) sets forth those defenses that must be pled

affirmatively. NOTE: December 2010 Amendments

to the Fed. R. Civ. P. eliminate the requirement to

plead “discharge in bankruptcy” as an affirmative

defense.

(2) Under Rule 10(b) each affirmative defense should

be set forth in a separate numbered paragraph.

(3) If you fail to plead an affirmative defense, it may be

waived. Compare Simon v. United States, 891 F.2d

1154, 1159 (5th Cir. 1990)(failure of United States

to affirmatively plead as a defense to an FTCA

action the Louisiana Medical Malpractice Act

limitation on damages resulted in waiver of that

defense) with Owen v. U.S., 935 F.2d 734 (5th Cir.

1991)(fact that U.S. pled the cap and specifically

noted it in pre-trial order distinguishes Simon).

(4) But the "technical" failure to plead an affirmative

defense may not be fatal. See Blaney v. United

States, 34 F.3d 509, 512 (7th Cir. 1994)(Air Force's

failure to plead statute of limitations as an

affirmative defense in answer did not constitute a

waiver of the matter where the Air Force raised the

issue in a motion to dismiss and the district court

chose to recognize the defense). Cf. Harris v.

Secretary, Dep't of Veterans Affairs, 126 F.3d 339,

345 (D.C. Cir. 1997) (holding that a party must first

raise its affirmative defenses in a responsive

pleading before it can raise them in a dispositive

motion). See Rule 12(h).

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(5) The defendant may seek leave to amend, pursuant

to Rule 15(a), to add an affirmative defense. Such

leave should be freely granted when the interests of

justice so require. See Phyfer v. San Gabriel

Development Corp., 884 F.2d 235, 241 (5th Cir.

1989)(district court properly granted leave to amend

answer to add affirmative defense of collateral

estoppel where there was no unfair surprise to the

plaintiff). See also Sanders v. Dep't of the Army,

981 F.2d 990, 991 (8th Cir. 1992)(district court did

not abuse its discretion in allowing government to

raise statute of limitations in motion to dismiss

filed two months after its answer, when, inter alia,

the court properly granted government leave to

amend its answer to expressly include the omitted

limitations defense).

b. "A party…must admit or deny the allegations asserted

against it by an opposing party." Fed. R. Civ. P.

8(b)(1)(B).

(1) Must admit or deny each allegation of the

complaint. May deny specific allegations of

specific paragraphs and admit the remainder, or

may make general denial with specific admissions.

For example:

“Paragraph # is admitted.”

“Admitted that . Denied that .

“The first sentence of paragraph # is

admitted. The remainder of paragraph # is

denied.”

# . Admitted.

“Plaintiff admits that and denies that

.”

(2) Failure to deny constitutes an admission.

(3) If pleader is without knowledge or information

sufficient to form a belief as to the truth of an

allegation, he can so state in his answer and it will

have the effect of a denial.

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(4) Can enter a general denial to all the allegations of

the complaint, BUT, consider Rule 11.

3. Time to Answer.

a. Government and official capacity defendants have 60 days

to answer; private defendant has 21 days. Fed. R. Civ. P.

12(a)(2). Government employee sued for acts or omissions

occurring in connection with the performance of duties on

behalf of the United States have 60 days to answer,

counting from later of: service on officer or employee, or

service on the United States attorney. Fed. R. Civ. P.

12(a)(3). If service of summons is waived under Rule 4(d),

then 60 days after request for waiver. Id.

b. A motion served under Rule 12 enlarges the time to answer

until 14 days after notice of the court’s action on the

motion (unless a different time is fixed by court order).

Fed. R. Civ. P. 12(a)(4) or 14 days after a more definite

statement is filed if a motion for more definite statement is

filed pursuant to Rule 12(e).

IV. MOTION PRACTICE.

A. General.

B. Motion to Dismiss. Fed. R. Civ. P. 12(b).

1. Federal courts simply require notice pleading and must construe

pleadings liberally in ruling on motions to dismiss. Clorox v.

Chromium Corp., 158 F.R.D. 120 (N.D. Ill. 1994) (citing, inter

alia, Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163

(1993)).

2. Lack of jurisdiction over the subject matter. Fed. R. Civ. P.

12(b)(1).

a. Except for Supreme Court’s original jurisdiction, federal

judicial power is dependent upon a statutory grant of

jurisdiction. Kline v. Burke Constr. Co., 260 U.S. 226,

233-34 (1992); Stevenson v. Fain, 195 U.S. 165, 167

(1904).

b. The burden of pleading and proving the subject-matter

jurisdiction of the court is on the plaintiff. McNutt v.

General Motors Acceptance Corp., 298 U.S. 178, 182, 189

(1936). Normally, the defendant is bound by the amount

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claimed by the plaintiff unless “it is apparent, to a legal

certainty, that the plaintiff cannot recover the amount

claimed.” St. Paul Mercury Indem. Co. v. Red Cab Co.,

303 U.S. 283 (1938). Federal court jurisdiction cannot be

presumed, but must be affirmatively and positively pled.

Norton v. Larney, 266 U.S. 511 (1925).

c. Lack of jurisdiction over the subject matter cannot be

waived and can be raised for the first time on appeal. In

fact, any court considering a case has a duty to raise the

issue sua sponte if it appears that subject matter jurisdiction

is lacking. Emrich v. Touche Ross & Co., 846 F.2d 1190

(9th Cir. 1988) (but see Pauly v. Eagle Point Software Co.,

Inc., 958 F.Supp. 437 (N.D.Iowa 1997) (declined to follow

Emrich)).

d. A "facial attack" on the court's jurisdiction goes to whether

the plaintiff has properly alleged a basis of subject matter

jurisdiction. A "factual attack" challenges the existence of

subject matter jurisdiction in fact, regardless of the

allegations in the complaint. Matter outside the complaint

may be considered by the court in resolving the issue. See,

e.g., Stanley v. C.I.A., 639 F.2d 1146 (5th Cir. 1981)

(granting leave to amend when it appeared that plaintiff

may have pleaded a colorable section 1983 claim in his

complaint, rather than the FTCA cause of action asserted);

Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th

Cir.), cert. denied, 449 U.S. 953 (1980).

e. Considering matters outside the pleadings does not convert

a motion to dismiss for lack of subject matter jurisdiction

into a motion for summary judgment and the dismissal is

not an adjudication on the merits. Haase v. Sessions, 835

F.2d 902 (D.C. Cir. 1987); Stanley v. C.I.A., 639 F.2d 1146

(5th Cir. 1981). But cf. Sutton v. United States, 819 F.2d

1289, 1299 (5th Cir. 1987) (when determination of waiver

of sovereign immunity requires factual development, court

should permit limited discovery and require parties to

submit the issue by summary judgment rather than by a

motion to dismiss). Wheeler v. Hurdman, 825 F.2d 257

(10th Cir.), cert. denied, 484 U.S 986 (1987) (when subject

matter jurisdiction is intertwined with the underlying claim,

the issue should be resolved under Rule 12(b)(6) or Rule

56). Thompson Trading Ltd. v. Allied Lyons PLC, 123

F.R.D. 417 (D.R.I. 1989) (In practice, First Circuit district

judges regularly consider affidavits and the like in ruling on

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motions to dismiss on jurisdictional grounds, an approach

which is sound.)

f. Sovereign Immunity.1

(1) The United States, as sovereign, is immune from

suit save as it consents to be sued, and the terms of

its consent to be sued in any court define that

court’s jurisdiction to entertain that suit. United

States v. Mitchell, 445 U.S. 535, 538 (1980); United

States v. Sherwood, 312 U.S. 584, 586 (1941).

(2) With regard to the sovereign immunity of officials

and agencies of the United States, as opposed to the

United States itself, the general rule is that the suit

is, in effect, a suit against the United States when

the judgment sought would expend itself on the

public treasury or domain, or interfere with the

public administration, or if the effect of the

judgment would be to restrain the government from

acting, or compel it to act. Dugan v. Rank, 372

U.S. 609, 620 (1963).

(3) In suits against federal officials for money damages

directly under the Constitution (Bivens suits), the

principle of sovereign immunity does not apply,

since the suit is against the federal official

personally (i.e., in his individual capacity as

opposed to his official capacity.) Kenner v. Holder,

WL 6617331 (S.D.Ca. 2012) (Dugan exception to

the doctrine of sovereign immunity does not apply

when plaintiffs sue federal officials in their official

capacity, not as individuals.).

(4) Commonly asserted provisions that waive sovereign

immunity:

The Tucker Act, 28 U.S.C. §§ 1346(a)(2),

1491(a)(1).

The Federal Tort Claims Act, 28 U.S.C. §

1346(b).

The Freedom of Information Act, 5 U.S.C. §

552.

1 May also be asserted as failure to state a claim under Rule 12(b)(6).

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The Privacy Act, 5 U.S.C. § 552a.

The Unjust Conviction Act, 28 U.S.C. §§ 2513,

1495.

The Equal Access to Justice Act, 28 U.S.C. §

2412(b) & (d); 5 U.S.C. § 504.

The Civil Rights Act of 1991.

The Administrative Procedure Act (APA), 5

U.S.C. § 701, et seq. However, the APA does

not contain a specific jurisdictional grant. 28

U.S.C. § 1331 (federal question jurisdiction) can

furnish the basis for a suit under the APA. See

Califono v. Sanders, 430 U.S. 99 (1977)

(addressing the causes of action available under

the APA); Gochnour v. Marsh, 754 F.2d 1137

(5th Cir. 1985).

(5) Commonly asserted provisions that do not waive

sovereign immunity for monetary relief:

The federal question jurisdiction statute, 28

U.S.C. § 1331. See, e.g., Gilbert v. Dagrossa,

756 F.2d 1455 (9th Cir. 1985).

The commerce and trade regulation statute, 28

U.S.C. § 1337. See, e.g., Hagemeier v. Block,

806 F.2d 197 (8th Cir. 1986), cert. denied, 481

U.S. 1054 (1987).

The civil rights jurisdiction statute, 28 U.S.C. §

1343. See, e.g., Beale v. Blount, 461 F.2d 1133

(5th Cir. 1972).

The mandamus statute, 28 U.S.C. § 1361. See,

e.g., Doe v. Civiletti, 635 F.2d 88 (2d Cir.

1980).

The Declaratory Judgment Act, 28 U.S.C. §

2201-02. See, e.g., Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667 (1952); Mitchell v.

Ridell, 402 F.2d 842 (9th Cir. 1968).

The Constitution. See, e.g., United States v.

Testan, 424 U.S. 392 (1976).

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(6) Any waiver of sovereign immunity must be strictly

construed in favor of the United States. A waiver of

sovereign immunity “cannot be implied but must be

unequivocally expressed.” United States v.

Mitchell, 445 U.S. 535, 538 (1980); see Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 95

(1990) (noting that the Sup. Ct. has allowed

equitable tolling “in situations where the claimant

has been induced or tircked by his adversary’s

conduct into allowing the filing deadline to pass”).

It must be contained in statutory language that is

“specific and express.” United States v. King, 395

U.S. 1, 4 (1969) (superseded by Contract Disputes

Act of 1978, 41 U.S.C. §§ 601-13, and before the

Tucker Act 28 U.S.C. § 1491, which provide for

Claims Court jurisdiction over naked default

termination claims). For this reason, the waiver

cannot be enlarged beyond the boundaries that the

statutory language plainly requires. United States v.

Nordic Village, Inc., 503 U.S. 30, 34 (1992); see

also Lane v. Pena, 518 U.S. 187, 191-92 (1996).

Waivers of the Government’s sovereign immunity,

“are not generally to be ‘liberally construed.’”

Nordic Village, 503 U.S. at 34. Instead, “the

Government’s consent to be sued ‘must be

construed strictly in favor of the sovereign.’” Id.

(quoting Ruckelshaus v. Sierra Club, 463 U.S. 680,

685 (1983)); but see In re Anton Motors, Inc., 177

B.R. 58 (Bkrtcy.D.Md.1995) (New 11 U.S.C. §

104(a) added by § 113 of the Bankruptcy Reform

Act of 1994 effectively overrules Nordic Village);

see also Ardestani v. INS, 502 U.S. 129, 137 (1991)

(“[a]ny such waiver must be strictly construed in

favor of the United States”).

(7) Congressional conditions on waivers of sovereign

immunity are jurisdictional prerequisites to suit.

United States v. Dalm, 494 U.S. 596 (1990); Block

v. North Dakota, 461 U.S. 273 (1983); Lehman v.

Nakshian, 453 U.S. 156 (1981) (in action against

United States, plaintiff has a right to trial by jury

only where Congress has affirmatively and

unambiguously granted the right by statute); United

States v. Kubrick, 444 U.S. 111 (1979). However,

see Irwin v. Veterans Administration, 498 U.S. 89

(1990), which held that the 30-day requirement for

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filing suit in an EEO case against the government

can be equitably tolled.

g. Failure to Exhaust Administrative Remedies.2

(1) Statutory Exhaustion Requirement. When the

statute itself specifically requires exhaustion of

administrative remedies prior to bringing a judicial

action, then exhaustion is mandatory. McCarthy v.

Madigan, 503 U.S. 140 (1992) (Note: At the time

of the McCarthy decision, federal law only required

state inmates filing civil rights actions pursuant to

42 U.S.C. 1983 to exhaust administrative remedies.

Congress amended PLRA in 1997; see Moore v.

Smith, 18 F.Supp.2d 1360 (N.D.Ga.1998) (noting

amendments to 42 U.S.C. 1997(e) replaced

language allowing courts to enforce exhaustion

requirements “if appropriate and in the interests of

justice” with mandatory language of “[n]o action

shall be brought”). Examples:

Presentation of a Federal Tort Claim to the

administrative agency. 28 U.S.C. § 2675.

Administrative processing of a Title VII

complaint of discrimination. 42 U.S.C. §

2000e-16(c).

Administrative claims for social security

disability. 42 U.S.C. § 405(g).

(2) Judicially Mandated Exhaustion. If there is no

statute which establishes an administrative remedy,

or if the statute does not clearly mandate

exhaustion, the court may balance the various

factors set out in McCarthy v. Madigan, supra, to

determine whether administrative exhaustion

required. The court will not require exhaustion

when the interests of the individual in retaining

prompt access outweighs the institutional interests

favoring exhaustion, or when undue prejudice exists

to the subsequent assertion of court action, such as

when there is an unreasonable or indefinite time

frame for administrative action, or the

administrative remedy is inadequate, or the

2 May also be asserted as failure to state a claim under Rule 12(b)(6).

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administrative body is shown to be biased or to

have predetermined the issue.

(3) When judicial review of an agency decision is

sought under the APA, and the statute or agency

rules do not require exhaustion, no judicially-

created exhaustion requirement can be imposed.

See Darby v. Cisneros, 509 U.S. 137 (1993). See

also 5 U.S.C. § 704. But, Darby may have limited

applicability to the military. See Saad v. Dalton,

846 F. Supp. 889 (S.D. Cal. 1994) (holding that

"review of military personnel actions . . . is a unique

context with specialized rules limiting judicial

review," and citing Chappell v. Wallace, 462 U.S.

486 (1983)). In some circuits, the military services

may continue to assert the exhaustion doctrine as a

defense, seeking to distinguish Darby--which was

not a military case. See E. Roy Hawkens, The

Exhaustion Component of the Mindes Justiciability

Test Is Not Laid to Rest by Darby v. Cisneros, 166

Mil. L. Rev. 67 (2000) (arguing that Darby is

inapplicable to military claims). But see Crane v.

Sec’y of Army, 92 F.Supp.2d 155, 161 (W.D. N.Y.

2000) (“Almost without exception, federal courts

throughout this country have also declined to create

a military exception to the Court’s decision in

Darby.”).

(4) What remedies must be exhausted?

Boards for Correction of Military Records. 10

U.S.C. § 1552.

Discharge Review Boards. 10 U.S.C. § 1553.

Article 138, UCMJ. 10 U.S.C. § 938.

Clemency Boards. 10 U.S.C. §§ 874, 951-954.

Inspector General. 10 U.S.C. § 3039.

(5) Exceptions to the exhaustion doctrine:

Inadequacy. Von Hoffburg v. United States, 615

F.2d 633 (5th Cir. 1980).

Futility. Compare Watkins v. United States

Army, 541 F.Supp. 249 (W.D. Wash. 1982) and

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Steffan v. Cheney, 733 F.Supp. 115 (D.D.C.

1989) with Schaefer v. Cheney, 725 F.Supp. 40

(D.D.C. 1989).

Irreparable injury. Hickey v. Commandant, 461

F.Supp. 1085 (E.D. Pa. 1978).

Purely legal issues. Committee for GI Rights v.

Callaway, 518 F.2d 466 (D.C. Cir. 1975).

Avoiding piecemeal relief. Walters v. Secretary

of the Navy, 533 F.Supp. 1068 (D.D.C. 1982),

rev’d on other grounds, 725 F.2d 107 (D.C. Cir.

1983).

(6) Example of Rule 12(b)(1) motion in DoD litigation:

Hoery v. United States, 324 F.3d 1220 (10th Cir.

2003) (reversing district court’s order granting

government’s motion to dismiss for lack of subject

matter jurisdiction, and holding that landowner’s

cause of action under FTCA continued to accrue,

for limitations purposes, until removal of toxic

chemicals was accomplished).

h. Standing.3

(1) The standing inquiry has constitutional, statutory,

and judicially formulated components. Valley

Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464

(1982) (standing subsumes a blend of constitutional

requirements and prudential considerations).

(2) In the constitutional sense, Article III requires that a

plaintiff have suffered an injury which is

redressable by the court. Lujan v. Defenders of

Wildlife, 504 U.S. 555 (1992). An asserted right to

have the government act in accordance with the law

does not confer standing. Allen v. Wright, 468 U.S.

737 (1984); Schlesinger v. Reservists Comm. To

Stop the War, 418 U.S. 208 (1978).

3 Sometimes asserted as failure to state a claim under Rule 12(b)(6), but more properly brought as Rule

12(b)(1) motion. See Lipsman v. Secretary of the Army, 257 F.Supp.2d 3, 5 (D.D.C. 2003) (“A challenge

to the standing of a party, when raised as a motion to dismiss, proceeds pursuant to Rule 12(b)(1).”).

4 May also be asserted as failure to state a claim under Rule 12(b)(6).

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(3) In general, in order for the plaintiff to have

standing, the plaintiff must show that the challenged

action has caused him injury in fact (that he has

personally suffered some actual or threatened injury

as a result of the putatively illegal conduct of the

defendant), and that the interest sought to be

protected by him is arguably within the zone of

interests to be protected or regulated by the statute

or constitutional guarantee in question. Lujan v.

National Wildlife Federation, 497 U.S. 871 (1990);

Meese v. Keene, 481 U.S. 465 (1987); Association

of Data Processing Service Organizations, Inc. v.

Camp, 397 U.S. 150, 152-53 (1970).

(4) A plaintiff may not claim standing to vindicate the

constitutional rights of third parties. Tileston v.

Ullman, 318 U.S. 44 (1943). A plaintiff may only

challenge a statute or regulation in terms in which it

is applied to him. Parker v. Levy, 417 U.S. 733

(1974); Hatheway v. Secretary of the Army, 641

F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864

(1981). Exception: if statute confers third–party

standing. Havens Realty Corp. v. Coleman, 455

U.S. 363 (1982).

i. Lack of Ripeness (no justiciable case or controversy).4

(1) “The conclusion that an issue is not ripe for

adjudication ordinarily emphasizes a prospective

examination of the controversy which indicates that

future events may affect its structure in ways that

determine its present justiciability, either by making

a later decision more apt or by demonstrating

directly that the matter is not yet appropriate for

adjudication by an article III court.” L. Tribe,

American Constitutional Law 61 (2d Ed. 1988)

(emphasis in original).

(2) Rationale: Avoid premature litigation of suits and

protect agencies from unnecessary judicial

interference. Abbott Laboratories v. Gardner, 387

U.S. 136 (1967), rev’d on other grounds, Califano

v. Sanders, 430 U.S. 99 (1977).

5 May also be asserted as failure to state a claim under Rule 12(b)(6).

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(3) In determining whether a case is ripe for

adjudication, a court must evaluate the fitness of the

issues for judicial decision and determine the

hardship to the parties of withholding court

decision. Abbott, infra.

(4) Examples: Hastings v. Judicial Conference, 770

F.2d 1093 (D.C. Cir. 1985); Watkins v. United

States Army, No. C-81-1065R (W.D. Wash. Oct.

23, 1981).

j. Mootness (no justiciable case or controversy).5

(1) “Mootness looks primarily to the relationship

between past events and the present challenge in

order to determine whether there remains a ‘case or

controversy’ that meets the article III test of

justiciability.” L. Tribe, American Constitutional

Law 62 (1988).

(2) General rule: there is no case or controversy once

the issues in a lawsuit have been resolved.

(3) Test: a case becomes moot when: “it can be said

with assurance that there is no reasonable

expectation … that the alleged violation will recur”

and “interim relief or events have completely and

irrevocably eradicated the effects of the alleged

violation.” County of Los Angeles v. Davis, 440

U.S. 625, 635 (1979).

(4) Exceptions:

Capable of repetition, yet evading review.

Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (class action the only exception to the

mootness doctrine); but see Lynch v. United

States, 557 A.2d 580 (D.C. 1989) (declining to

follow Weinstein on state law grounds).

Voluntary cessation. United States v. W.T.

Grant Co., 345 U.S. 629 (1953); Berlin

Democratic Club v. Rumsfeld, 410 F.Supp. 144

(D.D.C. 1976).

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Collateral consequences. Sibron v. New York,

392 U.S. 40 (1968); Connell v. Shoemaker, 555

F.2d 483 (5th Cir. 1977). Class actions. Sosna

v. Iowa, 419 U.S. 393 (1975)(mootness of the

class representative’s claim after the class has

been certified – the case is not moot); United

States Parole Commission v. Geraghty, 445 U.S.

388 (1980) (mootness of class representative’s

claim after motion for class certification made

and denied but before appeal from the denial –

the case is not moot); Indianapolis School

Comm’rs v. Jacobs, 420 U.S. 128 (1975)

(mootness of class representative’s claim before

class certification – the case may be moot).

k. No remedy; exclusive remedy.6

(1) Judicial review may be foreclosed when the statute

which creates the rights does not authorize judicial

review. See Califano v. Sanders, 430 U.S. 99

(1977) (no judicial review of decisions of the

Secretary of HHS to deny a petition to reopen).

(2) When Congress has specially crafted a

comprehensive statutory scheme, it is generally the

only avenue for judicial action. See Brown v.

General Services Administration, 425 U.S. 820

(1976) (Title VII is the exclusive remedy for

discrimination in federal employment).

l. Incorrect Defendant.7

(1) The only proper defendant in a suit under the FTCA

is the United States.

(2) Under the Federal Employees Liability Reform and

Tort Compensation Act of 1988, commonly known

as the Westfall Act, federal employees cannot be

held responsible for common law torts. Exclusive

remedy is against the United States under the

FTCA. See 28 U.S.C. § 2679(b).

(3) The head of the agency is the only appropriate

defendant in a Title VII case.

6 May also be asserted as failure to state a claim under Rule 12(b)(6).

7 May also be asserted as failure to state a claim under Rule 12(b)(6).

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3. Lack of jurisdiction over the person. Fed. R. Civ. P. 12(b)(2).

a. For suits against the United States, its agencies and

officers, the issue arises in the context of whether there has

been sufficient process or service of process upon the

government such that the court has jurisdiction over the

“person” of the United States.

b. For suits against United States officers in their personal or

individual capacities (Bivens suits), this defense is

important to consider. May be asserted when an individual

is sued in a forum other than where he or she resides or is

otherwise amenable to personal jurisdiction.

c. Personal jurisdiction, unlike subject matter jurisdiction, is

waivable and must be asserted by the defendant. Petrowski

v. Hawkeye-Sec. Ins. Co., 350 U.S. 495 (1956).

d. Whether personal jurisdiction over a nonresident defendant

is present will depend upon the state long-arm statute and

whether the defendant has sufficient "minimum contacts"

with the forum to satisfy due process. See International

Shoe Co. v. Washington, 326 U.S. 310 (1945).

(1) The plaintiff must comply with the requirements of

the state long-arm statute, and

(2) Maintaining the action must not offend "traditional

notions of fair play and substantial justice."

4. Improper venue. Fed. R. Civ. P. 12(b)(3).

a. Generally, actions against the United States, its officers and

agencies, can be brought where the defendant resides,

where the cause of action arose, where any real property

involved is located, or, if no real property is involved,

where the plaintiff resides. 28 U.S.C. § 1391(e). In Bivens

cases, section 1391(e) does not apply, and venue is a very

important consideration.

b. Like personal jurisdiction, the defense of improper venue

may be waived if not raised in a pre-answer motion or in

the answer itself. Fed. R. Civ. P. 12(h)(1).

c. Actions under the FTCA can be brought only where the

plaintiff resides or where the act or omission occurred. 28

U.S.C. § 1402(b).

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d. Tucker Act claims brought in the district court can only be

brought in the district where the plaintiff resides. 28 U.S.C.

§ 1402(a)(1).

e. Compare a motion to dismiss under 12(b)(3) with a motion

to transfer venue under 28 U.S.C. §§ 1404(a) or 1406(a).

5. Insufficiency of process. Fed. R. Civ. P. 12(b)(4).

a. The complaint and summons together constitute "process."

Fed. R. Civ. P. 4(b) sets out the required form of the

summons.

b. Rule 12(b)(4) motions challenge the form of the process; if

process is defective, plaintiff has failed to perfect personal

jurisdiction over the defendant.

c. Rather than dismiss the action, courts will often quash the

service and allow plaintiff to re-serve the defendant.

Bolton v. Guiffrida, 569 F. Supp. 30 (N.D. Cal. 1983);

Boatman v. Thomas, 320 F. Supp. 1079 (M.D. Pa. 1971).

6. Insufficiency of service of process. Fed. R.Civ. P. 12(b)(5).

a. Challenge to the manner in which process is served. Has the

plaintiff complied with Rule 4? See Bryant v. Rohr Ind., Inc.,

116 F.R.D. 530 (W.D. Wash. 1987) (case dismissed without

prejudice because of pro se plaintiff's failure to show good

cause for his failure to comply with requirements of Rule 4).

b. Like Rule 12(b)(4), courts generally will quash the service and

retain the case and provide plaintiff with another opportunity to

perfect service. Daley v. ALIA, 105 F.R.D. 87 (E.D.N.Y.

1985); Hill v. Sands, 403 F. Supp. 1368 (N.D. Ill. 1975). But

see Lovelace v. Acme Markets, Inc., 820 F.2d 81 (3d Cir.),

cert. denied, 484 U.S. 965 (1987) (dismissal for failure to serve

process within 120 days effectively terminates suit with

prejudice if statute of limitations has expired). Accord

Townsel v. Contra Costa County, Cal., 820 F.2d 319 (9th Cir.

1987).

c. In litigation against the United States, its agencies and officers,

consider:

(1) Has the U.S. Attorney been served with a copy of the

summons and complaint by hand delivery or by

registered or certified mail directed to the appropriate

person in accordance with Rule 4(i)?

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(2) Has the Attorney General been served by registered or

certified mail in accordance with Rule 4(i)?

(3) Are individual defendants being sued in their official or

individual capacities?

(a) Official capacity service can be accomplished

by certified mail under 28 U.S.C. § 1391(e), or

pursuant to Rule 4(i)(2)(A).

(b) Individual capacity service must be perfected as

required for any other private party. If the

complaint arguably implicates official activities

of the individually-named federal officer

defendant, service on the United States is also

be required. Fed. R. Civ. P. 4(i)(2)(B).

(4) Has service been made within 120 days of filing? See

Lambert v. United States, 44 F.3d 296 (5th

Cir.1995)(Plaintiff’s first FTCA action dismissed for

failure to effect service IAW Rule 4(i) within 120 days

and second FTCA action filed against United States

dismissed as untimely under FTCA’s six month statute

of limitations).

7. Failure to state a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6).

a. The modern equivalent to the demurrer.

b. Old Standard - The motion will be granted only if the

defendant can demonstrate that the plaintiff can prove no

set of facts that would entitle him to relief. Conley v.

Gibson, 355 U.S. 41 (1957); Carter v. Cornwell, 983 F.2d

52 (6th Cir. 1993).

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c. New Standard - a complaint must contain “sufficient

factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)); see also Weber v. Dept. of

Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir. 2008). “A

pleading that offers ‘labels and conclusions’ or a ‘formulaic

recitation of the elements of a cause of action’ will not do.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

555) (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice”). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quoting Twombly at 556). A

complaint also must contain allegations giving defendants

“fair notice of what the ... claim is and the grounds upon

which it rests.” Id. at 1961 (quoting Twombly at 555).

d. Factual allegations of the complaint are assumed to be true

and all reasonable inferences are made in favor of the

nonmoving party. United States v. Gaubert, 499 U.S. 315,

327 (1991). Legal conclusion masquerading as factual

allegations are not deemed to be true. See Iqbal, 129 S. Ct.

at 1949 (citing Twombly at 555); see also Sanders v. Brown,

504 F.3d 903, 910 (9th Cir. 2007) (“Conclusory allegations

and unreasonable inferences . . . are insufficient to defeat a

motion to dismiss.”); Taylor v. F.D.I.C., 132 F.3d 753, 762

(D.C. Cir. 1997).

e. The court's inquiry is limited to the four corners of the

complaint; if the court considers matters outside the

pleadings, the motion is treated as one for summary

judgment under Fed. R. Civ. P. 56. California v. American

Stores Co., 872 F.2d 837 (9th Cir.); J.M. Mechanical Corp.

v. United States, 716 F.2d 190 (3d Cir. 1983); Biesenbach

v. Guenther, 588 F.2d 400 (3d Cir. 1978); Fed. R. Civ. P.

12(b).

f. In the context of Bivens claims and claims alleging fraud,

conspiracy, and other civil rights violations, a heightened

pleading standard applies, and the operative facts upon

which the claim is based must be pled. Mere conclusory

allegations are insufficient. See Harlow v. Fitzgerald, 457

U.S. 800 (1982).

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g. In a Bivens action, the plaintiff must plead the personal

involvement of each defendant and vicarious liability is not

allowed. Bivens v. Six Unknown, Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388, 390 n.2 (1971).

h. Examples of Rule 12(b)(6) motions in federal litigation:

(1) Absolute official immunity: If allegations of the

complaint contain all of the facts upon which the

defense of absolute immunity is based, dismissal

under Rule 12(b)(6) is appropriate. Imbler v.

Pachtman, 424 U.S. 409 (1976) (state prosecuting

attorney entitled to absolute immunity when he is

“initiating and pursuing criminal prosecution”).

(2) Nonjusticiable "political questions": Subject matter

jurisdiction is present because the matter is a "case

or controversy" under Article III, but is otherwise

unsuited for judicial resolution because of a

constitutional commitment to another branch of

government. Gilligan v. Morgan, 413 U.S. 1

(1973).

(3) Feres-based immunity of military officers from

Bivens actions brought by their subordinates. Cf.

Chappell v. Wallace, 462 U.S. 296 (1983). But see

Wright v. Park, 5 F.3d 586 (C.A.1 (Me.) 1993).

“To call the Feres doctrine an exception is an

oversimplification. Feres is a judge-made exception

to the [FTCA], itself a statutory waiver of sovereign

immunity from tort liability. Thus, if tort liability is

the rule, Feres created an exception to an exception

to an exception.” Id. at 591 n.5.

(4) Nonreviewable military activities: Mindes v.

Seaman, 453 F.2d 197 (5th Cir. 1971) (overruled on

other grounds).

(5) FTCA cases that fail to allege a cause of action

under state law: Davis v. Dep't of Army, 602 F.

Supp. 355 (D. Md. 1985).

8. Failure to join a party under Rule 19. Fed. R. Civ. P. 12(b)(7).

9. Timing and waiver of Rule 12(b) motions. Fed. R. Civ. P. 12(h).

C-31

a. 12(b) defenses “may at the option of the pleader be made

by motion.” However, a motion raising any of the defenses

enumerated in that section "shall be made before pleading

if a further pleading is permitted." Fed. R. Civ. P. 12(b).

b. If a motion is filed under Rule 12 and the movant omits

therefrom the defense of lack of personal jurisdiction,

improper venue, insufficiency of process, or insufficiency

of service of process, the defense is waived. Fed. R. Civ. P.

12(g) & (h)(1). See Guccione v. Flynt, 618 F. Supp. 164

(S.D.N.Y. 1985) (failure to raise lack of personal

jurisdiction in a motion challenging insufficiency of service

of process constitutes a waiver of the defense of lack of

personal jurisdiction). Failure to include lack of personal

jurisdiction, improper venue, insufficiency of process, or

insufficiency of service of process in the answer if no Rule

12 motion is filed constitutes waiver. Fed. R. Civ. P.

12(h)(1). See also Benveniste v. Eisman, 119 F.R.D. 628

(S.D.N.Y. 1988) (insufficiency of service waived even

though preserved in the answer but not presented to the

court for resolution until almost four years after the action

was commenced).

C. Motion for Judgment on the Pleadings. Fed. R. Civ. P. 12(c).

1. A Rule 12(c) motion challenges the legal sufficiency of the

opposing party’s pleadings.

2. On motion for judgment on the pleadings, court must accept all

factual allegations of the complaint as true and motion is granted

when movant is entitled to judgment as a matter of law. Westlands

Water District v. U.S. Dep’t of Interior, 805 F.Supp. 1503, 1506

(E.D. Cal. 1992), aff’d 10 F.3d 667 (9th Cir. 1993).

3. If matters outside the pleading are presented to and not excluded

by the court, motion is treated as one for summary judgment and

disposed of as provided in Rule 56. Fed. R. Civ. P. 12(c);

Latecoere International, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342,

1356 (11th Cir. 1994).

D. Other Rule 12 Motions.

1. Motion for more definite statement. Fed. R. Civ. P. 12(e). Proper

when pleading to which a responsive pleading is permitted is "so

vague or ambiguous that a party cannot reasonably be required to

frame a responsive pleading."

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2. Motion to strike. Fed. R. Civ. P. 12(f).

a. When? Before responding to a pleading or, if no response

permitted, within 20 days of service.

b. What? Any "insufficient defense or any redundant,

immaterial, impertinent, or scandalous matter."

E. Motion for Summary Judgment. Fed. R. Civ. P. 56.

1. Summary judgment disposes of cases where there is no dispute as

to any genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

2. Since summary judgment precludes trial of the case and thus

denies litigants their "day in court," it is sometimes referred to as a

"drastic" or "extreme" remedy. See Jones v. Nelson, 484 F.2d

1165 (10th Cir. 1973); U.S. v. Porter, 581 F.2d 698 (8th Cir. 1978).

BUT, in Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), the

Supreme Court instructed that the "[s]ummary judgment procedure

is properly regarded not as a disfavored procedural shortcut, but

rather as an integral part of the Federal Rules as a whole, which are

designed 'to secure the just, speedy and inexpensive determination

of every action.'"

3. Moving party's burden is to show that there is no dispute as to a

genuine issue of material fact and that he is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56; United States v. One Tintoretto

Painting, 691 F.2d 603, 606 (2d Cir. 1982). But see United States

v. An Antique Platter of Gold, 991 F.Supp. 222 (S.D.N.Y. 1997)

(pointing out that Tintoretto relied on dicta, which the Supreme

Court has since stated should not be relied on to create an innocent

owner defense (Bennis v. Michigan, 516 U.S. 442 (1996)).

a. Substantive law will identify which facts are material, and

only disputes over facts that might affect the outcome of

the case will properly prevail on summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

b. Burden is met by the pleadings, depositions, answers to

interrogatories, admissions, and any affidavits submitted by

the movant in support of the motion. Bell v. Dillard Dep’t

Stores, Inc., 85 F.3d 1451 (10th Cir. 1996).

C-33

c. Moving party is entitled to summary judgment if after

adequate time for discovery the party who will have the

burden of proof at trial on an essential element cannot make

a showing sufficient to establish the existence of that

element. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

4. The responding party need only show a dispute as to a genuine

issue of material fact to defeat the motion.

a. Materials submitted in support of the motion should be

viewed in light most favorable to the non-moving party and

all reasonable inferences should be drawn in his favor.

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970). See

also Big Apple BMW, Inc. v. BMW of North America,

Inc., 974 F.2d 1358 (C.A.3.Pa., 1992).

b. Once a motion has been made and supported by

depositions, admissions, affidavits, etc., the opposing party

cannot rest upon the allegations in the pleadings; he must

respond with affidavits and evidence of his own to create a

material issue of fact. Fed. R. Civ. P. 56(e). Adler v.

Glickman, 87 F.3d 956 (7th Cir. 1996).

c. When the primary issue is one of intent or state of mind,

summary judgment is generally inappropriate. Suydam v.

Reed-Stenhouse of Wash., Inc., 820 F.2d 1506 (9th Cir.

1987).

d. When the non-moving party has the burden of proof at trial,

the moving party may carry its burden at summary

judgment either by presenting evidence negating an

essential element of the non-moving party’s claim or by

pointing to specific portions of the record which

demonstrate that the non-moving party cannot meet its

burden of proof at trial. Anderson v. Radisson Hotel Corp.,

834 F.Supp. 1364 (S.D.Ga. Jun 21 1993) (citing Clark, 929

F.2d at 606-608 (explaining Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) and Celotex Corp v. Catrett, 477 U.S.

317 (1986)).

5. Rule 56 – December 2010 Amendments

a. Previously, Rule 56 provided, unless court order or local

rules state otherwise, a response to MSJ was due within 21

days and reply to the response was due within 14 days

Amended Rule 56: No default response time lines.

C-34

b. Previous Rule 56(f) addressed a situation when nonmovant

was not able to respond to MSJ because specific facts that

need to be developed. Amended Rule 56 now addresses

this situation in Rule (d). Distinction is important when

doing research and talking with older AUSAs.

c. Amended Rule 56(e) merely articulates practice that is

common in most jurisdictions. When a party opposing

MSJ does not contest a fact, the district court has the

authority to: grant the party the opportunity to support the

fact with the supplemental filings, consider the fact

undisputed, grant MSJ, or issue an appropriate order. Rule

56(e).

V. CONCLUSION.

D-1

FEDERAL LITIGATION COURSE

TAB D

DISCOVERY THEORY & PRACTICE

I. DISCOVERY: SCOPE, LIMITATIONS, SANCTIONS AND

SUPPLEMENTATION

A. Scope and Limits of Discovery.

1. Scope: Fed. R. Civ. P. 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which

is relevant to the subject matter involved in the pending action, whether it

relates to the claim or defense of the party seeking discovery or to the

claim or defense of any other party, including the existence, description,

nature, custody, condition and location of any books, documents, or other

tangible things and the identity and location of persons having knowledge

of any discoverable matter. The information sought need not be

admissible at the trial if the information sought appears reasonably

calculated to lead to the discovery of admissible evidence.

a. "Relevancy" in the context of Fed. R. Civ. P. 26(b)(1) is broadly

construed.

(1) "[A]ny matter that bears on, or that reasonably could lead to

other matter that could bear on, any issue that is or may be

in the case . . . [is relevant] . . . [D]iscovery is not limite

d to issues raised by the pleadings, for discovery itself is

designed to help define and clarify the issues . . . Nor is

discovery limited to the merits of a case, for a variety of

fact-oriented issues may arise during litigation that are not

related to the merits." Oppenheimer Fund, Inc., v. Sanders,

437 U.S. 340, 351 (1978) (citations omitted).

(2) "Relevant to the subject matter" is synonymous with

"germane.” Wright & Miller, Federal Practice and

Procedure: Civil § 2008 (1985). But see Steffan v.

Cheney, 920 F.2d 74 (D.C. Cir. 1990).

D-2

(3) Inadmissibility at trial is not grounds for objection to

discovery if the information sought "appears reasonably

calculated to lead to the discovery of admissible evidence."

See Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.

1978) (Engineering document which was not produced

during discovery and which contained references to other

documents which were not produced so that discovery of

original document would, at a minimum, have led to the

discovery of additional documents was reasonably

calculated to lead to the discovery of admissible evidence).

b. Privileged material is generally not discoverable.

(1) Privileges in the discovery context refer to those privileges

found in the law of evidence. See U.S. v. Reynolds, 345

U.S. 1, 6 (1953). Fed. R. Evid. 1101(c) ("The rules on

privilege apply to all stages of a case or proceeding.").

(2) Claims of privilege must be made in writing and with

specificity. The party claiming the privilege must "describe

the nature of the documents, communications, or things not

produced or disclosed in a manner that . . . will enable other

parties to assess the applicability of the privilege or

protection. Fed. R. Civ. P. 26(b)(5).

(3) The privileges which may properly be invoked depend on

the nature of action. Fed. R. Evid. 501.

(a) If federal law governs the action, (e.g., federal

question cases) the privileges recognized by federal

common law apply. See Heilman v. Waldron, 287

F.R.D. 467, 473-74 (D. Minn. 2012).

(b) If state law provides the rule of decision, either as to

an element of the claim or a defense, (e.g., cases

brought under diversity jurisdiction) then the

privileges recognized under state law apply. See

Heilman v. Waldron, 287 F.R.D. 467, 473-74 (D.

Minn. 2012).

D-3

(c) When a federal court applies state law in a non-

diversity case, e.g., in an FTCA action, it does so by

adopting the state rule as federal law, thus "state

law" does not provide the rule of decision within the

meaning of Fed. R. Evid. 501 and federal law

governs the privilege issue. Whitman v. United

States, 108 F.R.D. 5, 6 (D.N.H. 1985); Mewborn v.

Heckler, 101 F.R.D. 691, 693 (D.D.C. 1984). See

generally Wright & Graham, Federal Practice and

Procedure, Evidence § 5433.

(d) Exception: Work product immunity is governed by

federal law, even in diversity (state law) cases. See

EDO Corp. v. Newark Ins. Co., 145 F.R.D. 18 (D.

Conn. 1992).

(4) Privileges which typically arise in government litigation

include:

(a) Military and State Secrets Privilege:

i) Privilege belongs to the government and

must be asserted by it.

ii) To assert the privilege, it must be (1) a

formal claim of privilege, (2) lodged by the

head of the department that has control over

the matter, and (3) after actual personal

consideration. United States v. Reynolds,

345 U.S. 1 (1953). See also Coastal Corp. v.

Duncan, 86 F.R.D. 514 (D. Del. 1980);

Yang v. Reno 157 F.R.D. 625 (M.D. Pa.

1994).

(b) Intra-agency advisory opinions, or the so-called

"deliberative process privilege:"

i) Asserted in the same manner as state secrets

privilege.

ii) Designed to protect internal decision-

making process and thus encourage full and

free discussions of the various issues and

policies by the participants.

D-4

iii) Two requirements: (1) information must be

deliberative, and (2) the information must be

pre-decisional. See Olmsted v. McNutt, 188

F.R.D. 386 (D. Colo. 1999).

iv) Commonly used to protect aircraft accident

safety investigations from disclosure. See

United States v. Weber Aircraft, 465 U.S.

792 (1984); Machin v. Zuckert, 316 F.2d

336 (D.C. Cir. 1963), cert. den'd, 375 U.S.

896 (1963).

v) Caveat: If deliberations are in issue, they

may be discoverable. See Dep't of Econ.

Dev. v. Arthur Andersen & Co., 139 F.R.D.

295 (S.D.N.Y. 1991).

(c) Work Product Privilege:

i) Protects documents and tangible things

prepared by a party, his attorney, agent, or

representative, when done in anticipation of

litigation or for trial. Fed. R. Civ. P.

26(b)(3); Hickman v. Taylor, 329 U.S. 495

(1947). See Leonen v. Johns-Manville, 135

F.R.D. 94 (D.N.J. 1990).

ii) May be overcome if the party seeking

discovery has a substantial need for the

materials sought and is unable, without

undue hardship, to obtain the substantial

equivalent by other means. Raso v. CMC

Equip. Rental Inc., 154 F.R.D. 126 (E.D. Pa.

1994). Contemporaneous statements are

typically so unique as to allow for no

"substantial equivalent." Wright & Miller,

Federal Practice & Procedure, Civil § 2025.

Duck v. Warren, 160 F.R.D. 80 (E.D. Va.

1995).

D-5

iii) Even where a showing of need compels

production, the impressions, conclusions and

opinions of counsel are protected (absent

fraud). In re Doe, 662 F.2d 1073 (4th Cir.

1981); FDIC v. Singh, 140 F.R.D. 252 (D.

Me. 1992); Diamond State Ins. Co. v. Rebel

Oil Co. 157 F.R.D. 691 (D. Nev. 1994). But

cf. William Penn Life Assur. v. Brown

Trans. & Storage, 141 F.R.D. 142 (W.D.

Mo. 1990). See also In re San Juan DuPont

Plaza Hotel Fire Lit., 859 F.2d 1007 (1st Cir.

1988); Shelton v. AMC, 805 F.2d 1323 (8th

Cir. 1986).

iv) A disclosure by the client or even by counsel

to someone other than an adversary does not

waive protection. See Westinghouse Elec.

Corp. v. Rep. of Philippines, 951 F.2d 1414

(3rd Cir. 1991); Khandji v. Keystone Resort

Mgt. Inc., 140 F.R.D. 697 (D. Colo. 1992);

Data General Corp. v. Grumman Systems

Corp., 139 F.R.D. 556 (D. Mass. 1991);

Catino v. Travelers Ins. Co., 136 F.R.D. 534

(D. Mass. 1991).

(d) Attorney-Client Privilege:

i) Protects communications between an

attorney and the client when made in

connection with securing a legal opinion or

obtaining legal services. See Upjohn Co. v.

U.S., 449 U.S. 383 (1981).

ii) Privilege applicable in the government

setting. See Green v. IRS, 556 F. Supp. 79

(N.D. Ind. 1982), aff'd, 734 F.2d 18 (7th Cir.

1984).

D-6

iii) Disclosure to any third party waives

privilege. See In re Sealed Case, 676 F.2d

793, 809 (D.C. Cir. 1982) (Partial disclosure

of otherwise privileged information waives

privilege with respect to all communications

regarding related subject matter), Harding v.

Dana Transport, Inc. 914 F.Supp. 1084

(D.N.J. 1996); Draus v. Healthtrust,

Incorporated-The Hosp. Co., 172 F.R.D. 384

(S.D. Ind. 1997) (Inadvertent disclosure

waives the privilege).

(e) Medical Quality Assurance Records Privilege:

Records created in a medical quality assurance

program are confidential and privileged; they may

be disclosed only as provided by statute. 10 U.S.C.

§ 1102. See W. Woodruff, The Confidentiality of

Medical Quality Assurance Records, The Army

Lawyer, May 1987, at 5; In re United States of

America, 864 F.2d 1153 (5th Cir. 1989).

2. Mandatory disclosures under Fed. R. Civ. P. 26(a). Certain material must

be disclosed to other parties, even absent a request for it.

a. Initial disclosures. Without receiving a discovery request and at

or within 14 days of the meeting of the parties to plan for

discovery held under Rule 26(f) (i.e., usually within 90 days after

the defendant makes an appearance), each party must provide:

(1) The name, address and telephone number of witnesses, who

are “likely to have discoverable information that the

disclosing party may use to support its claims or defenses”

and the subjects of which these are knowledgeable;

(2) A copy of any document or a description of any document

and all tangible things which the disclosing party may use

to support its claims or defenses;

(3) A computation of damages – by damage category, and non-

privileged factual material related to the nature and extent

of injuries suffered;

(4) A copy of any insurance agreement under which an

insurance business may be liable to satisfy any potential

judgment.

D-7

b. Certain categories of cases are excluded from the initial disclosure

requirement. These include:

(1) actions based on an administrative record;

(2) petitions for habeas corpus;

(3) actions brought pro se by persons in custody of the United

States;

(4) actions to enforce or quash a subpoena or an administrative

summons;

(5) actions, by the United States, to recover benefits;

(6) proceedings ancillary to proceedings in other courts;

(7) actions to enforce arbitration awards.

b. A party may not withhold its own initial disclosure because its

adversary has failed to comply with this requirement or made an

inadequate disclosure.

c. Expert disclosures.

(1) The identity of all experts who may be used at trial must be

disclosed to the other parties at the time specified by the

court, and in no event, less than 90 days before trial.

(a) The disclosure requirement applies to all testifying

experts, not just those specially retained or

employed;

(b) The scope of the disclosure required for a specially

retained expert is substantially greater than for

expert witnesses who were not specially retained.

(2) Experts who will present testimony solely to rebut the

evidence presented by specially retained witnesses of an

adversary may be designated 30 days after the initial expert

disclosure, unless the court orders otherwise.

d. Pretrial disclosures.

(1) No later than 30 days prior to trial, unless the court orders

otherwise, the parties must disclose:

D-8

(a) the identification of all "will call" and "may call"

witnesses;

(b) a designation of any testimony which is expected to

be presented by deposition, and if the deposition

was not stenographically transcribed, a transcript of

those designated portions;

(c) the identification of all documents or other exhibits

expected to be offered or which may be offered at

the trial.

(2) Within 14 days after these disclosures are made, the

opposing parties may serve objections to the deposition

designations and objections to the admissibility of

documents and exhibits. Objections to admissibility, other

than on the basis of relevancy, not raised are waived.

3. Scope of discovery for expert witnesses: Fed. R. Civ. P. 26(b)(4).

a. Discovery from experts expected to testify.

(1) Parties may depose expert witnesses retained by their

adversaries.

(a) If the court requires Rule 26(a)(2) expert reports to

be exchanged, the deposition cannot be conducted

until the report is provided. See Freeland v. Amigo,

103 F.3d 1271 (6th

Cir. 1997).

(b) The party seeking discovery must ordinarily pay the

reasonable expenses of the expert in responding to

discovery. See Mathis v. NYNEX, 165 F.R.D. 23

(E.D.N.Y. 1996); but see Reed v. Binder, 165

F.R.D. 424 (D.N.J. 1996) (would be manifestly

unjust to force indigent plaintiff to pay defendant's

excessive number of experts).

(2) Rule 26(a)(2)(B) sets forth the material which must be

produced under the mandatory disclosure requirement and,

therefore, also describes some of the information ordinarily

discoverable, including:

(a) "all of the opinions to be expressed [by the expert]

and the basis and reasons therefore;"

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(b) "the facts or data considered by the witness;"

(c) "any exhibits to be used as a summary of or support

for the opinions;"

(d) the witness' qualifications including "a list of all

publications authored by the witness within the

preceding ten years;"

(e) the compensation the witness is receiving for "study

and testimony," and;

(f) "a listing of any other cases in which the witness

has testified as an expert at trial or by deposition

within the preceding four years."

See Nguyen v. IBG, Inc. 162 F.R.D. 675 (D. Kan. 1995).

b. Discovery from retained experts who are not expected to testify is

ordinarily prohibited. See Coates v. A.C. & S., Inc., 133 F.R.D.

109 (E.D. La. 1990). Fed. R. Civ. P. 26(b)(4)(B):

A party may . . . discover facts known or opinions held

by an expert who has been retained or specially

employed . . . in anticipation of litigation or preparation

for trial and who is not expected . . . [to testify at trial],

only as provided in Rule 35(b) or upon a showing of

exceptional circumstances under which it is

impracticable . . . to obtain facts or opinions on the

same subject by other means.

(1) In-house experts can be "specially employed" but their pre-

retention knowledge and opinions are subject to full

discovery. In re Shell Oil Refinery, 134 F.R.D. 148 (E.D.

La. 1990).

(2) Providing the work-product of a non-testifying expert to a

testifying expert may make it discoverable. See Douglas v.

University Hosp., 150 F.R.D. 165, 168 (E.D. Mo. 1993),

aff'd 34 F.3d 1070.

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B. Limitations on Discovery.

1. Limitations imposed by the rules.

a. Timing. Discovery may not be initiated until initial disclosures

are made and the parties have conferred to plan for discovery. Fed.

R. Civ. P. 26(d). Before the December 2000 amendments to the

Rules, this requirement, and many other discovery limitations

could be avoided by local district court rules. However, one

principal objective of the December 2000 amendments was to

establish uniform national discovery practices for federal courts.

Thus, many of the requirements imposed by local rules – in

contradiction to requirements of the federal discovery rules - are no

longer permissible.

b. Interrogatories. A party may propound 25 interrogatories,

including sub-parts. Fed. R. Civ. P. 33(a).

(1) An interrogatory composed of several sub-sections may be

counted as a single interrogatory or as multiple

interrogatories. The relevant determination is whether the

interrogatory requests information about "discrete separate

subjects." Note of Advisory Committee on Rules, 1993

Amendment.

(2) The number of permissible interrogatories can be increased

by leave of court or by written stipulation between the

parties.

(3) The court may impose different limitations on

interrogatories by a case management order.

c. Depositions. Plaintiffs, defendants, and third-party defendants are

limited to ten depositions in total. Fed. R. Civ. P. 30(a)(2)(A) &

31(a)(2)(A).

(1) Leave of court, or a written stipulation between the parties,

is required in order to take:

(a) Depositions in excess of ten;

(b) The deposition of any person in confinement;

(c) The deposition of anyone who has previously been

deposed in the case;

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(d) A deposition prior to the Rule 26(f) discovery

planning conference.

(2) The court may impose different limitations on depositions

by a case management order.

3. Limitations imposed by the forum.

a. The court, by a case management order, may alter the limitations

on depositions and interrogatories, or may impose restrictions on

the length of depositions and the number of requests for admission.

Local rules can impose limitations on the number of requests for

admission which may be served.

b. The court may also limit discovery, by order or either sua sponte

or in response to a motion for a protective order under Fed. R. Civ.

P. 26(c), if it determines that:

(1) "[T]he discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source that is

more convenient, less burdensome, or less expensive."

Fed. R. Civ. P. 26(b)(2)(C)(i). See Baine v. General

Motors, 141 F.R.D. 332 (M.D. Ala. 1991); Doubleday v.

Ruh, 149 F.R.D. 601 (E.D. Cal. 1993).

(2) "[T]he party seeking discovery has had ample opportunity

by discovery in the action to obtain the information

sought." Fed. R. Civ. P. 26(b)(2)(C)(ii).

(3) The discovery is unduly burdensome or expensive, taking

into account the needs of the case, the amount in

controversy, limitations on the parties' resources, the

importance of the issues at stake in the litigation, and the

importance of the discovery sought to the questions at

issue. Fed. R. Civ. P. 26(b)(2)(C)(iii). See Rainbow

Investors Group, Inc. v. Fuji Trucolor Missouri, Inc., 168

F.R.D. 34 (W.D. La. 1996).

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c. The discovery of electronic evidence, particularly “inaccessible

electronic evidence,” has caused courts to formulate new tests for

the determination of whether discovery is “unduly burdensome or

expensive,” and has encouraged courts to enter orders shifting the

cost of discovery to the party seeking the production. See Rowe

Entertainment, Inc. v. William Morris Agency, Inc., 205 F.RD.

421 (S.D.N.Y. 2002); Zubulake v. UBS Warburg, LLC, 220

F.R.D. 212 (S.D.N.Y. 2003). In determining whether to shift the

costs, courts may consider:

(1) The extent to which the request is narrowed to the

discovery of relevant information;

(2) Whether the evidence produced is or was available from

other, less costly, sources;

(3) The cost of producing the evidence in relation to the

amount in controversy;

(4) The cost of producing the evidence in relation to the

resources of each party;

(5) The relative ability of each party to control costs and its

incentive to do so;

(6) The significance of the issues at stake;

(7) The relative benefit – to the various parties – of the

evidence produced.

See Zubalake v. UBS Warburg LLC, 217 F.R.D. 309

(S.D.N.Y.2003).

4. Protective orders limiting discovery may also be sought under Rule 26(c),

but the party seeking protection bears a substantial burden of showing

entitlement. See In re Agent Orange Product Liability Litigation, 104

F.R.D. 559 (E.D.N.Y. 1985). NOTE: Seeking a protective order does not

absolve movant of the duty to respond. Williams v. AT&T, 134 F.R.D.

302 (M.D. Fla. 1991).

a. A motion seeking a protective order must be accompanied by a

certification that the moving party conferred with the affected

parties in an attempt to resolve the dispute.

b. The court has broad discretion in fashioning protective orders. See

Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir.

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1992).

C. Signing Discovery Requests and Responses.

1. "Every disclosure [under Rule 26(a)(1) or (a)(3)] shall be signed by at

least one attorney of record . . . The signature . . . constitutes a certification

that to the best of the signer's knowledge, information and belief, formed

after a reasonable inquiry, the disclosure is complete and correct as of the

time it is made." Fed. R. Civ. P. 26(g)(1).

2. Every discovery request, response, or objection shall be signed by at least

one attorney of record. Fed. R. Civ. P. 26(g).

"The signature . . . constitutes a certification that to the best of the signer's

knowledge, information, and belief, formed after a reasonable inquiry, the

request, response or objection is:

(A) consistent with these rules and warranted by existing law or a good

faith argument for the extension, modification, or reversal of

existing law;

(B) not interposed for any improper purpose, such as to harass or to

cause unnecessary delay or needless increase in the cost of

litigation; and

(C) not unreasonable or unduly burdensome or expensive, given the

needs of the case, the discovery already had in the case, the amount

in controversy, and the importance of the issues at stake in the

litigation.

Fed. R. Civ. P. 26(g) (emphasis added). See Brandt v. Vulcan, Inc., 30

F.3d 752, 756, n. 8 (7th

Cir. 1994).

3. "Reasonable inquiry" is satisfied if the investigation undertaken by the

attorney and the conclusions arrived at are reasonable under the

circumstances. The standard is objective, not a subjective "bad faith" test.

While the attorney's signature does not certify the truthfulness of the

client's factual responses, it does certify that the lawyer has made

reasonable efforts to assure that the client has provided all the information

and documents available to him that are responsive to the discovery

request. See Bernal v. All American Investment Realty, Inc., 479

F.Supp.2d 1291 (S.D. Fla. 2007).

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4. If a certification is made in violation of the rule, the court SHALL impose

an appropriate sanction upon the person who made the certification. The

court may also sanction the party, or the person signing and the party.

Sanctions may include an order to pay the reasonable expenses incurred

because of the violation, including a reasonable attorney's fee. Fed. R.

Civ. P. 26(g)(3). Malautea v. Suzuki Motor Corp., 148 F.R.D. 362 (S.D.

Ga. 1991) aff'd 987 F.2d 1536, cert. den'd, 510 U.S. 863. The criteria for

awarding sanctions are similar to those under Rule 11. In re Byrd, Inc.,

927 F.2d 1135 (10th Cir. 1991); Apex Oil Co. v. Belchor Co. of New

York, Inc., 855 F.2d 1009 (2d Cir. 1988).

5. The provisions of Fed. R. Civ. P. 11 do not apply to discovery matters.

Fed. R. Civ. P. 11(d).

6. Agency counsel are generally expected to prepare and sign the answers to

interrogatories directed to the agency or the United States when the

interrogatories seek information within the knowledge of the agency.

United States Attorneys Manual § 4-1.440.

D. Supplementing Responses to Discovery.

1. A party has a duty to supplement any disclosures made under Rule 26(a),

at appropriate intervals, whenever the party determines that "in some

material respect the information disclosed is incomplete or incorrect and if

the additional or corrective information has not otherwise been made

known to the other parties during the discovery process or in writing."

Fed. R. Civ. P. 26(e)(1).

2. Generally, there is no obligation to supplement deposition testimony.

However, where an expert's deposition is used in whole or in part to

satisfy the disclosure requirement of Fed. R. 26(a)(2), a duty to

supplement may arise. See also, Freund v. Fleetwood Enterprises, Inc.,

956 F.2d 354 (1st Cir. 1992); Blumenfeld v. Stuppi, 921 F.2d 116 (7th Cir.

1990); Bradley v. United States, 866 F.2d 120 (5th Cir. 1989) (failure to

supplement response with identity of expert or substance of his/her facts

and opinions may bar use of expert at trial.)

3. Supplementation must be timely ("seasonable"). See Fusco v. General

Motors Corp. 11 F.3d 259 (1st

Cir. 1993) (providing a videotape related to

expert testimony on liability one month before trial not seasonable); Davis v. Marathon Oil Co., 528 F.2d 395 (6th Cir. 1975) (supplementation of

witness list three days before trial warrants excluding them as witnesses);

Royalty Petroleum Co. v. Arkla, Inc., 129 F.R.D. 674 (D. Okla. 1990)

(supplemental interrogatories on eve of trial warranted excluding

testimony on that issue).

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4. Counsel who fails to take immediate remedial measures when additional

or corrective information is discovered risks running afoul of the duty of

candor to the tribunal. See United States v. Shaffer Equipment Co., 796

F.Supp. 938 (S.D. W.Va. 1992)(Government CERCLA cost recovery

action dismissed because government counsel violated duty of candor to

the tribunal), aff’d in part and rev’d in part, 11 F.3d 454 (4th

Cir. 1993).

5. Court can order further supplementation of disclosures or discovery

responses. Fed. R. Civ. P. 26(e)(1)(B).

E. Sanctions for Discovery Abuses.

1. Automatic Sanctions. "A party that without substantial justification fails

to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless

such failure is harmless, be permitted to use as evidence at a trial, at a

hearing, or on a motion any witness or information not so disclosed." Fed.

R. Civ. P. 37(c). No motion is required. However, upon motion and after

an opportunity to be heard, the court may impose additional sanctions,

including:

a. reasonable expenses, including attorney's fees, and;

b. advising the jury of the party's failure to disclose the evidence.

2. Sanctions available upon application to the court. Fed. R. Civ. P. 37.

a. Compelling Discovery. Fed. R. Civ. P. 37(a).

(1) The court wherein the action is pending or the court for the

district where a deposition is being taken, may, upon

application, enter an order requiring the discovery to take

place as requested.

(2) A motion is appropriate when:

(a) The deponent refuses to answer a question posed

during a deposition. In such a case, the questioner

may adjourn or complete the deposition before

seeking the court's intervention.

(b) A party fails to answer an interrogatory.

(c) A party refuses to produce documents or allow

inspection as requested.

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(d) A party fails to designate an individual pursuant to

Fed. R. Civ. P. 30(b)(6). See Fed. R. Civ. P.

37(a)(3)(B).

(3) An evasive or incomplete answer is treated as a failure to

respond. Fed. R. Civ. P. 37(a)(4).

(4) Any motion to compel must include a certification that the

moving party attempted, by conference with the person or

party resisting discovery, to resolve the matter before

seeking court intervention. Fed. R. Civ. P. 37(a)(1).

(5) In addition to ordering the discovery to take place, the court

"shall" order the party or deponent whose conduct

necessitated the motion, or the attorney, to pay the moving

party the expenses incurred, including a reasonable

attorney's fee unless the court finds the opposition was

substantially justified or other circumstances make an

award unjust. Fed. R. Civ. P. 37(a)(5).

(6) An award of costs shall also be awarded when the

discovery is provided after the motion is filed. Fed. R. Civ.

P. 37(a)(5).

(7) If the motion to compel is denied, the moving party must

pay the costs unless the court finds that the making of the

motion was justified or other circumstances makes an

award unjust. Fed. R. Civ. P. 37(a)(5)(B).

b. Sanctions for failure to obey the motion to compel.

(1) A deponent who refuses to be sworn or to answer questions

after being directed to do so may be held in contempt of

court. Fed. R. Civ. P. 37(b)(1). See Mertsching v. U.S.,

704 F.2d 505 (8th

Cir. 1983).

(2) Oral discovery orders must be complied with and

disobedience can give rise to Rule 37 sanctions. Avionc

Co. v. General Dynamics Corp., 957 F.2d 555 (8th Cir.

1992); Bhan v. NME Hospitals, Inc., 929 F.2d 1404 (9th

Cir. 1991).

(3) Fed. R. Civ. P. 37(b)(2) provides for a wide range of

possible sanctions for disobedient parties:

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(a) An order establishing facts. See Chilcutt v. U.S., 4

F.3rd

1313 (5th

Cir. 1993), reh'g den'd, and cert.

den'd 513 U.S. 979. Insurance Corp. of Ireland v.

Compagnie des Bauxites, 456 U.S. 694 (1982).

(b) An order precluding a party from supporting or

opposing a claim or defense or prohibiting him from

introducing certain evidence. See Parker v.

Freightliner Corp., 940 F.2d 1019 (7th Cir. 1991);

Bradley v. U.S., 866 F.2d 120 (5th Cir. 1989);

Callwood v. Zurita, 158 F.R.D. 359 (D. Virgin

Islands 1994).

(c) An order striking pleadings. See Green v. District

of Columbia, 134 F.R.D. 1 (D.D.C. 1991); Frame

V. S-H, Inc. 967 F.2d 194 (5th

Cir. 1992).

(d) An order staying the proceedings until compliance.

(e) An order dismissing the action or rendering

judgment by default against the disobedient party.

National Hockey League v. Metropolitan Hockey

Club, 427 U.S. 639 (1976). But see Fed. R. Civ. P.

55(e) ("No judgment by default shall be entered

against the United States or an officer or agency

thereof unless the claimant establishes a claim or

right to relief by evidence satisfactory to the court.")

See Metropolitan Opera Association, Inc. v. Local

100, Hotel Employees and Restaurant Employees

International Union, 2003 WL 186645 (S.D.N.Y.

Jan. 28, 2003).

(f) An adverse jury instruction. See Residential

Funding Corp. v. DeGeorge Home Alliance, Inc.

306 F.3d 99 (2nd

Cir. 2002).

(g) An order holding the disobedient party in contempt

of court.

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(h) Monetary sanctions may be imposed on the party,

its attorney(s) (including government counsel), or

both. U.S. v. Sumitomo Marine & Fire Ins. Co.,

617 F.2d 1365 (9th Cir. 1980); Pereira v.

Narragansett Fishing Corp.,135 F.R.D. 24 (D. Mass.

1991); F.D.I.C. v. Conner, 20 F.3d 1376 (5th

Cir.

1994) (Government attorney required to pay costs

from personal funds.)

(4) Sanctions imposed on party need only be "just" and related

to the infraction in question. See Boardman v. National

Medical Enterprises, 106 F.3d 840 (8th

Cir. 1997)

(5) The "drastic" remedy of dismissal is reserved for the most

flagrant violations. In re Exxon Valdez, 102 F.3d 429 (9th

Cir. 1996); Bluitt v. ARCO Chemical Co., 777 F.2d 188

(5th Cir. 1985); Spence v. Maryland Cas. Co. 803 F.Supp

649 (W.D.N.Y. 1992) aff'd 995 F.2d 1147. But see

Morgan v. Massachusetts General Hosp. Corp., 704 F.2d

12 (1st Cir. 1983). Such actions will only be taken in

egregious circumstances (e.g., bad faith, willfulness, or

fault). See Refac Intern. Ltd. v. Hitachi Ltd., 921 F.2d

1247 (Fed. Cir. 1990); Monroe v. Ridley, 135 F.R.D. 1

(D.D.C. 1990).

c. A party's failure to attend its own deposition, to answer

interrogatories, or to respond to requests for production is

immediately sanctionable (i.e., the movant need not first secure an

order compelling disclosure). Any of the various sanctions, save

contempt, may be imposed. Blue Grass Steel, Inc. v. Miller Bldg.

Corp. 162 F.R.D. 493 (E.D. Pa. 1995). Fed. R. Civ. P. 37(d).

d. Expenses upon failure to admit.

(1) If a party refuses to admit the genuineness of a document or

the truth of a fact as requested under Fed. R. Civ. P. 36, and

the requesting party subsequently proves the genuineness

of the document or the truth of the fact, the party refusing

to admit may be ordered to pay his opponent's expenses.

Fed. R. Civ. P. 37(c)(2). U.S. v. Watchmakers of

Switzerland Information Center, Inc. 25 F.R.D. 197

(C.D.N.Y. 1959).

(2) The court "shall" order payment of the reasonable

expenses, including attorney's fees, unless it finds that:

D-19

(a) The request was objectionable.

(b) The admission sought was of no substantial

importance.

(c) The party refusing to admit had reasonable ground

to believe he might prevail.

(d) There were other good reasons for the failure to

admit. Fed. R. Civ. P. 37(c)(2).

e. The court may require a party or an attorney to pay the reasonable

expenses incurred by reason of that party or attorney's failure to

confer and assist in the development of a discovery plan. Fed. R.

Civ. P. 37(g).

f. The court may impose a sanction upon any person who has

“frustrated the fair examination of [a] deponent.” The sanction

may include reasonable attorneys fees and costs incurred by other

parties as a result of the offensive conduct. Fed. R. Civ. P.

30(d)(2).

II. DISCOVERY: STRATEGY, PRACTICE AND PROCEDURE

A. Planning for discovery.

1. Discovery in every case should begin with the formulation of a discovery

strategy.

a. The discovery strategy should address the following questions:

(1) What information do I have an affirmative obligation to

disclose?

(2) What information do I need to obtain?

(3) Who has the information I need?

(4) In what posture in the litigation do I hope to place my

adversary through discovery?

(5) What posture in the litigation do I want to avoid?

(6) What information do I have which my adversary will try to

obtain and how can I best marshal and present it or prevent

its disclosure?

b. Consider the following when preparing the discovery strategy:

(1) The nature and complexity of the legal issues involved;

(2) The amount in controversy or the importance of the

principles and positions being attacked by the adversary;

(3) The strategy for the defense of the case;

(4) The number and nature of the parties in the litigation;

(5) The issues likely to be contested and to be conceded.

c. The discovery strategy must be formulated prior to the Rule 26(f)

pre-discovery conference of the parties.

d. Check local rules. The December 2000 amendments to the Rules

was intended to standardize discovery practice in the U.S. District

Courts. Nevertheless, the implementation of the federal rules

governing discovery has always varied widely from district to

district and sometimes within each division of a district. The

importance of securing an up-to-date copy of the local rules of

court cannot be overstated.

(1) Local rules may impose additional or different limits on the

frequency and amount of discovery than those imposed by

the federal rules. E.g., limitations on the number of

requests for admissions a party or local conditions for the

26(f) conference. Although the December 2000

amendments should reduce the number of discovery

practice variations, some will surely remain.

(2) The particular format for discovery papers, as well as other

pleadings and motions, may be set out in the local rules.

(3) Local rules may memorialize customary discovery time

limits, alter the time for objecting to discovery, establish

procedures for requesting a discovery conference, and

delineate the steps that a party must take to resolve a

discovery dispute. They may also require a party to set

forth certain information with regard to documents for

which a privilege is asserted.

(5) Local rules may provide for "uniform discovery

definitions" or uniform discovery that must be answered.

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D-21

(6) Local rules versus "local practice". Local practices may

vary considerably from local rules. Consult with a local

practitioner if possible.

2. Rule 26(f) pre-discovery conference and discovery plan.

a. Except in specified excepted cases or where a court order provides

otherwise, all parties are required to confer before beginning

discovery in any action.

b. The conference should be held "as soon as practicable" but not

later than 21 days before a scheduling conference is held or a

scheduling order is due. See Fed. R. Civ. P. 16(b). Rule 16(b)

orders are required within 90 days of the appearance of the

defendant, making a 26(f) conference necessary within the first 69

days after an appearance.

c. Topics to be covered at the conference include the nature of the

claims and defenses, the likelihood of settlement or other

resolution of the case, the conditions for the exchange of

mandatory disclosures, and an appropriate discovery plan for the

case.

d. All parties are jointly responsible for providing the court with a

report within 14 days of the conference outlining the discovery

plan. The plan must include:

(1) any agreements regarding initial disclosures, including a

statement of when these were or will be made;

(2) the subjects of future discovery, when discovery will be

completed, and whether discovery will be phased or limited

to certain subject areas;

(3) whether amendments to the limitations on discovery

imposed by the federal rules or by the rules of court are

necessary for this case;

(4) whether any protective orders regarding discovery or any

scheduling or other Rule 16 order should be entered.

e. Rule 26(f) permits the court, by order or local rule, to require that

the conference be held less than 21 days prior to the scheduling

conference and to require an oral, rather than written report

concerning the discovery plan. This amendment was one of the

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few concessions to those districts which have expedited discovery

calendars made by the December 2000 amendments.

3. Implement the discovery strategy by outlining the tasks to be performed in

sequence.

a. Complex cases may require a formal discovery planning document

assigning tasks and suspense dates to various attorneys involved in

the case. In simpler cases, counsel's hand-written notes may

suffice as a discovery outline. In any case, the outline should be

continuously reviewed and modified as tasks are completed and

information is generated.

b. A complete outline includes provisions for providing mandatory

disclosures and for responding to opposing discovery, including

marshalling any documents or tangible things expected to be

requested by the opposing party, and identifying and interviewing

any witnesses who will be identified by opposing counsel.

4. The amount of discovery required will depend upon the specifics of the

case and available resources.

5. The discovery outline and its implementation in a given case should serve

several purposes:

a. It should provide you with useful information in a timely manner.

(1) Facts and testimony should be gathered in time to make

effective use of it in subsequent discovery (e.g., expert

depositions).

(2) All of the evidence gathered should be consistent with the

theories to be advanced at trial.

b. It should use your available resources, including time, efficiently.

c. It should place you in the best negotiating position possible.

d. It should preserve and advance your defenses.

e. It should avoid unnecessary and unflattering appearances before

the judge.

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B. Filing discovery pleadings. Rule 5(d) provides that Rule 26(a) disclosures and

discovery pleadings (i.e., all requests and responses, including interrogatories,

requests for documents or to permit entry onto land, requests for admissions and

depositions) are not filed until they are used in proceeding or filing is ordered by

the court.

C. Using the Right Tool for the Right Job (at the right time).

1. Interrogatories (Fed. R. Civ. P. 33).

a. General procedure.

(1) Written questions covering the entire gamut of material and

information within the general scope of discovery

propounded to a party. Interrogatories directed to a specific

agent or employee who is not a named party are improper.

Waider v. Chicago, R.I., & P. Ry. Co., 10 F.R.D. 263 (D.C.

Iowa 1950).

(2) No more than 25 interrogatories, including all discrete

subparts, may be served without leave of the court or

agreement of the parties. Check local rules for additional

or different requirements.

(3) Unless an objection to the interrogatory is interposed, they

must be answered separately and fully under oath.

Answers must include all information known by the party

or his attorney. See Law v. National Collegiate Athletic

Ass'n, 167 F.R.D. 464 (D.Kan. 1996) vacated 96 F.3d

1337; Naismith v. PGA, 85 F.R.D. 552 (D.C. Ga. 1979).

When the party is a corporation or a governmental agency,

the party can designate an individual to answer the

interrogatories and will be bound by the responses.

Mangual v. Prudential Lines, Inc., 53 F.R.D. 301 (D.C. Pa.

1971). The attorney for the corporation or governmental

agency can answer. Wilson v. Volkswagen of American,

561 F.2d 494, 508 (4th Cir. 1977); Catanzaro v. Masco

Corp., 408 F. Supp. 862, 868 (D.C. Del. 1976); United

States v. 58.16 Acres of Land, 66 F.R.D. 570 (D.C. Ill.

1975). Ordinarily, an unsworn declaration made under

penalty of perjury may be used to satisfy the requirement

that the interrogatories be executed under oath. 28 U.S.C. §

1746.

D-24

(4) Answers are signed by the party responding; objections are

signed by the attorney making them. But note Fed. R. Civ.

P. 26(g) which requires the signature of the attorney of

record on the answers as well.

(5) Can be used at trial to extent permitted by the rules of

evidence.

(6) Party responding can produce business records or files in

lieu of answering if the answers can be found therein and,

as between the responder and the inquirer, the burden of

finding the answers would be equal. Fed. R. Civ. P. 33(d).

See Rainbow Pioneer v. Hawaii-Nevada Investment Corp.,

711 F.2d 902 (9th Cir. 1983); Walt Disney Co. v. DeFabiis,

168 F.R.D. 281 (C.D. Cal. 1996).

(7) Answers must be served within 30 days unless the court

orders a shorter or longer time for response, or the parties

agree to same. Failure to timely object constitutes a waiver

of any objection including that the information sought is

privileged. See, e.g., United States v. 58.16 Acres of Land,

66 F.R.D. 570, 572 (D. Ill. 1975).

b. Drafting Considerations.

(1) Unlike questions asked at a deposition, the answers to

interrogatories will be "word-smithed" by the opposing

party's attorney. Careful drafting is important. Any excuse

to avoid answering an interrogatory will be offered. Don't

expect to get a smoking gun out of an interrogatory answer.

(2) The following areas are appropriate for interrogatories in

most cases:

(a) Background information on the plaintiff that will

usually take some research to produce, such as the

dates of past medical treatment, former residences,

names and addresses of employers, etc. These

items can be acquired through interrogatories rather

than wasting deposition time.

(b) Factual details that are not controversial but are not

included in the Complaint or Answer.

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(b) The application of law to fact or the party's

contentions concerning certain facts ("contention

interrogatories"). See B. Braun Medical, Inc. v.

Abbott Laboratories, 155 F.R.D. 525 (E.D.Pa.

1994); Nestle Food Corp v. Aetna Cas. & Sur. Co.,

135 F.R.D. 101 (D.N.J. 1990); In re One Bancorp.

Securities Lit., 134 F.R.D. 4 (D. Me. 1991). But

cannot ask for pure conclusions of law. Bynum v.

United States, 36 F.R.D. 14, 15 (D.C. La. 1965).

(3) Miscellaneous considerations:

(a) Form interrogatories may be a useful starting place

in drafting, but should be used with care.

(b) Definitions sections are frequently used in

conjunction with interrogatories. By defining terms

interrogatories can be shortened and unnecessary

objections concerning ambiguity can be avoided.

However, the requirements imposed by these

sections are often ignored.

(4) Interrogatories that are objectionable in part, must be

answered to the extent not objectionable. Fed. R. Civ. P.

33(b)(1). Thus, the rule codifies the common practice of:

(a) stating an objection to the interrogatory;

(b) re-stating the interrogatory in a non-objectionable

way, and;

(c) answering the re-stated interrogatory.

c. Timing.

(1) A first set of interrogatories should be propounded as early

as possible in order to secure necessary background

information for the litigation.

(2) At a minimum, interrogatories should be propounded

before depositions unless unusual circumstances dictate

otherwise.

(3) A second set of interrogatories propounded late in the case,

(i.e. a number of contention interrogatories) used in

conjunction with requests for admission can be used to

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narrow the issues to be tried.

2. Request for Production of Documents and Things (Fed. R. Civ. P. 34).

a. General procedure.

(1) Applies only to parties. Hatch v. Reliance Ins. Co. 758 F.2d

409 (9th

Cir. 1985), cert. den'd 474 U.S. 1021.

(2) Must set forth with "reasonable particularity" the

documents or things to be produced for inspection,

copying, or testing. What is an adequate description is a

relative matter. You may designate documents by

category. "The goal [of designating documents with

reasonable particularity] is that the designation be sufficient

to apprise a man of ordinary intelligence what documents

are required and that the court be able to ascertain whether

the requested documents have been produced." Wright &

Miller, Federal Practice and Procedure, Civil § 2211 at 631;

U.S. v. National Steel Corp., 26 F.R.D. 607 (C.D. Tex.

1960).

(3) The documents or things must be in the possession,

custody, or control of the party. Fed. R. Civ. P. 34(a)(1).

(a) "Control" generally means the ability to obtain.

Comeau v. Rupp, 810 F.Supp. 1127, 1166 (D.Kan.

1992) recon. den'd 810 F.Supp. 1172.

(b) Party seeking production does not have a right,

however, to an authorization permitting independent

access to the documents or things. Neal v. Boulder,

142 F.R.D. 325, 328 (D.Colo. 1992) (Opposing

party was not entitled to an authorization to secure

medical records).

(4) Must also set forth a reasonable time, place and manner for

inspecting and copying. Fed. R. Civ. P. 34(b).

(5) A response to a request for inspection must be served

within 30 days, unless the court orders a shorter or longer

time for it. A response is not production. The response

simply agrees to permit inspection or objects. Fed. R. Civ.

P. 34(b)(2).

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(6) The responding party "shall" produce documents for

inspection in the manner they are kept in the ordinary

course of business or organize and label them to correspond

with the categories of the request. Fed. R. Civ. P.

34(b)(2)(E).

b. Drafting considerations for requests and responses.

(1) "Reasonable particularity" requirement is one that will

cause the most problems. If it can be misunderstood, it will

be.

(2) In an effort to get all documents, tendency is to draft over-

broad requests. May need to wait until answers to

interrogatories are in before adequate production requests

can be drafted.

(3) Following types of requests may be appropriate in most

cases:

(a) Assuming an appropriate interrogatory was asked,

the documents identified in the answer to the

interrogatory.

(a) All documents referred to or consulted in preparing

answers to interrogatories.

(4) Like interrogatories, the request for production must be

tailored to the case at hand.

(5) Electronic information. Fed. R. Civ. P. 34 applies to

information stored on any electronic media. Don't overlook

the possibility that material subject to production may exist

on thumb drives, hard disks, CD-ROM and may include

draft versions of documents, E-Mail messages, databases

and other information customarily stored on electronic

media. See Zubulake v. UBS Warburg LLC, 02 Civ. 1243,

U.S.D.C. (S.D.N.Y. ) (Orders of May 13, 2003 and June

24, 2003).

c. Timing.

(1) The request for production should be served as early as

possible in the litigation.

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(2) Additional requests may be required as further discovery

reveals the existence of documents that may not have been

described in the initial request. The federal rules make no

limitation on the number of requests which may be

propounded and local rules seldom do.

(3) In the rare case where local rules limit the number of

requests, a single interrogatory that requests the adversary

to describe the documents, records and things which exist

can be propounded prior to issuing the document request.

d. Securing documents from non-parties.

(1) Fed. R. Civ. P. 34 applies only to parties, therefore, must

subpoena documents or things from non-parties.

(2) Can serve subpoena for the individual to appear at a

deposition and produce described documents, or subpoena

only the documents. Fed. R. Civ. P. 45. Any objection

must be raised in court that issued subpoena, not forum

court. In re Digital Equipment Corp, 949 F.2d 228 (8th

Cir. 1991).

(3) If the discovery sought involves entering upon a non-

party's land, such may now be had under amended Fed. R.

Civ. P. 45.

3. Physical and Mental Examinations (Fed. R. Civ. P. 35).

a. General procedure.

(1) Absent agreement, an independent medical examination

(IME) requires a court order.

(2) An IME is allowed of a party or a person under the custody

or control of a party by a "suitably licensed or certified

examiner." Fed. R. Civ. P. 35(a)

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(3) An IME will be permitted only upon a showing of "good

cause."

(a) The mental or physical condition of the person to be

examined must be in controversy. A plaintiff in a

personal injury case places his mental or physical

condition in controversy and thus provides the

defendant with good cause. Schlagenhauf v.

Holder, 379 U.S. 104 (1964). See also Stanislawski

v. Upper River Services, Inc., 134 F.R.D. 260 (D.

Minn. 1991) (vocational examinations excluded).

(b) The mental condition of a party is not in issue

simply because the intent of a party is in issue.

Taylor v. National Group of Companies, Inc., 145

F.R.D. 79, 80 (N.D.Ohio 1992); but see Eckman v.

University of Rhode Island, 160 F.R.D. 431 (D.R.I.

1995).

(4) Order must specify the time, place, manner, conditions, and

scope of the examination, and the person or persons who

will conduct the IME. Thus, all arrangements should be

made prior to filing the motion. Fed. R. Civ. P. 35(a)(2).

(5) Person examined is entitled to a copy of the examiner's

report upon request. If request is made, examined party

must provide opponent with copies of reports of previous

or subsequent examinations. By requesting and obtaining

copy of examiner's report or by taking examiner's

deposition, person examined waives any doctor-patient

privilege that may apply to another person who has

examined him or who may examine him in the future with

respect to the mental or physical condition in issue. Fed. R.

Civ. P. 35(b).

b. Practical Considerations.

(1) Fed. R. Civ. P. 35 exam can be arranged by stipulation or

agreement of the parties. Same general rules concerning

exchange of reports, etc., apply to examinations by

stipulation unless agreement provides otherwise.

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(2) An IME conducted too early in the course of the patient's

illness or recovery period may not be valid at the time of

trial. For example, an early IME may not provide the

patient with enough time to fully improve, and thus, be of

little help in minimizing damages. On the other hand, an

IME too late may blow any chance of settlement for a

reasonable amount or put you in a bind to locate an

additional expert to address some condition the

examination revealed. Thus, the timing of the IME is

important, but it must depend upon the unique

circumstances of each case.

(3) A thorough exam by a competent physician may reveal that

the adverse party patient is severely disabled and has very

little chance of recovery. Thus, you may be helping your

opponent's case by seeking the IME. Don't seek an IME

until you have obtained all of the plaintiff's medical records

and have had them reviewed by appropriate consultants.

You may find that an exam is not really needed.

(4) While the rule allows mental as well as physical exams,

approach the mental IME with care. Experience shows that

a psychiatric/psychological examination seldom results in a

diagnosis of no abnormality.

4. Requests for Admissions (Fed. R. Civ. P. 36).

a. Purpose of the rule is to eliminate issues that are not really in

dispute and to facilitate the proof of those issues that cannot be

eliminated.

b. Request may go to any matter within the scope of discovery. Thus,

not strictly limited to seeking admissions of "facts." Furthermore,

it is not grounds for objection if the request goes to central facts

upon which the case will turn at trial. See, e.g., Pleasant Hill Bank

v. United States, 60 F.R.D. 1 (W.D. Mo. 1973). Prior to the 1970

amendments to the Federal Rules, some courts would restrict the

use of Fed. R. Civ. P. 36 and not permit requests that went to

"ultimate facts," "mixed law and fact," and "opinion." The 1970

changes provide for Fed. R. Civ. P. 36(b) to govern the scope of

the request.

c. General Procedure.

(1) Each request must be separately set forth.

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(2) Responding party has 30 days within which to answer,

unless the court orders a shorter or longer time.

(3) Unless answers are served within the time permitted, the

requests will be deemed admitted. Fed. R. Civ. P. 36(a);

United States v. Kasuboski, 834 F.2d 1345 (7th Cir. 1987);

Dukes v. South Carolina Ins. Co., 770 F.2d 545 (5th Cir.

1985); E.E.O.C. v. Jordon Graphics, Inc., 135 F.R.D. 126

(W.D.N.C. 1991).

(4) Answers must fairly meet the substance of the request.

Cannot evade a response due to lack of "information or

knowledge" unless you make a reasonable inquiry in an

attempt to gain the information upon which either an

admission or a denial can be based. Fed. R. Civ. P. 36(a);

United States v. Kenealy, 646 F.2d 699 (1st Cir. 1981),

cert. den'd, 454 U.S. 941 (1981). Johnson Intern. Co. v.

Jackson Nat. Life Ins. Co., 812 F.Supp. 966 (D. Neb.

1993), aff'd and remanded 19 F.3d 431.

(5) Court has discretion to permit party to withdraw a prior

admission or to relieve a party from the effect of an

admission for failure to respond. Fed. R. Civ. P. 36(b).

Whether the court will exercise that discretion and give the

party relief will depend upon the prejudice to the other

party and whether the party seeking relief has acted in good

faith. Donovan v. Buffalo Downtown Dump Truck Service

& Supplies, Inc., 1 Fed. Rules Serv. 3d (Callaghan) 561

(W.D.N.Y. 1985); Baleking Systems, Inc., 40 Fed. Rules

Serv. 2d (Callaghan) 1177 (D. Ore. 1984); Gardella v.

United States, 23 Fed. Rules Serv. 2d (Callaghan) 867 (D.

Mass. 1977).

(6) If a party fails to admit in response to a request and the

requesting party subsequently proves the truth of the matter

embodied in the request, the party refusing to admit may be

required to pay the requesting party's expenses incurred in

proving the matter, including reasonable attorney's fees.

Fed. R. Civ. P. 37(c).

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d. Practical Considerations.

(1) Careful drafting is required. Limit the scope of each

request. The narrower the better. "Admit that plaintiff's

injuries were proximately caused by his own contributory

negligence" v. "Admit that plaintiff consumed four beers

between 6:00 p.m. and 8:30 p.m."

(2) Use of request for admissions early in the case will limit

the issues and probably save considerable discovery. But,

if local rules limit the number of requests it is usually better

to wait until after some discovery has been conducted in

order to make the best use of the requests.

(3) Requests for admission are particularly well suited for

easing introduction of documentary evidence.

(4) Consider using requests for admissions and interrogatories

in conjunction. E.g.:

"Admit that plaintiff's tumor was not a prolactin secreting

tumor."

"If your response to the foregoing Request for Admission

was anything other than an unqualified admission, please

set forth with specificity all the evidence and information,

including testimony and records of every kind, that you

contend supports your response."

(5) United States Attorneys cannot admit liability in cases

seeking damages in excess of their settlement authority.

Thus, when the request for admission asks the U.S. to

admit negligence or liability, the U.S. Attorney may not be

permitted to admit, even if an admission is appropriate,

without the approval of DOJ. Most cases can be handled

with a denial since the request will be so broad and will

cover so many issues that an unqualified admission will not

be required. Furthermore, if the admission comes early in

the case an inability to either admit or deny due to the

incomplete nature of the investigation may be appropriate.

Difficulties arise, however, where the opponent submits

well drafted admissions directed to each of the underlying

facts comprising the plaintiff's case. These cannot be

avoided and counsel should notify DOJ ASAP.

D. Appellate Review of Discovery Orders

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1. Most discovery orders are interlocutory and not immediately appealable.

After judgment when they may be appealed, it is often difficult to show

prejudice or how the issue is not now moot.

2. Varying ways to seek immediate review are on contempt citations, by writ

of mandamus, on appeal from the quashing of a subpoena, or on

interlocutory appeal under 28 U.S.C. § 1292(b).

3. The standard of appellate review is highly deferential (abuse of

discretion). See Boardman v. National Medical Enterprises, 106 F.3d 840

(8th

Cir. 1997); In re San Juan DuPont Plaza Hotel Fire Litigation, 859

F.2d 1007 (1st Cir. 1988).

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FEDERAL LITIGATION COURSE

TAB E

DISCOVERY/ DEPOSITIONS

I. DEPOSITIONS – RULES AND PROCEDURES

A. Depositions Upon Written Questions (Fed. R. Civ. P. 31).

1. "Interrogatories" to non-parties.

2. Subpoena issued under Fed. R. Civ. P. 45 can compel the witness

to attend.

3. No more than 10 depositions under this rule and under Rule 30

may be taken by all the plaintiffs, all the defendants, or all the

third-party defendants without leave of court. Further, no witness

may be deposed more than once.

4. General Procedure.

(a) Party noticing the deposition must serve notice and his

questions upon all other parties.

(b) Parties then have 14 days to serve cross-examination

questions. Within 7 days of service of cross-examination

questions, party noticing deposition may serve re-direct

questions. Opponent then has 7 days to serve re-cross.

(c) After all questions have been served and re-served, party

noticing the deposition delivers them to the court reporter

and issues subpoena for the witness. Court reporter reads

the questions to the witness and records the answers.

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5. Practical Considerations.

(a) Much cheaper to mail a set of questions to a court reporter

than to fly to some distant location to depose the witness in

person.

(b) Useful for establishing evidentiary foundations to

authenticate documents or to lay foundations for business

records, etc.

(c) If the witness knows anything about the "facts" of the case,

the deposition upon written questions is a very cumbersome

and unreliable way to get that person's testimony.

(d) Will probably become even more underutilized as video-

conferencing for depositions becomes cheaper and more

accessible.

B. Depositions Upon Oral Examination (Fed. R. Civ. P. 30).

1. General Procedures.

(a) Must give "reasonable notice" in writing to all other parties.

Must include time, date, place, and name and address of

witness to be examined, as well as the manner in which the

deposition will be recorded. If the name of the proposed

deponent is unknown, the notice must provide “a general

description sufficient to identify the person or the particular

class or group to which the person belongs.”

(b) What is "reasonable" will depend upon the circumstances.

Compare Lloyd v. Cessna Aircraft, 430 F. Supp. 25 (E.D.

Tenn. 1976) (Two days not reasonable), with FAA v.

Landry, 705 F.2d 624 (2d Cir. 1983) (Four days

reasonable). But see National Independent Theatre

Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d

602 (11th Cir. 1984) (Four days not reasonable).

(c) Notice served less than 14 days prior to the deposition is

risky. Under Rule 32, if a party "promptly" files a motion

for protective order that the deposition be taken at another

time or place or not be taken, and the motion is pending

when the deposition is taken, the deposition may not be

used against the party. Fed. R. Civ. P. 32(a)(5)(A).

E-3

(d) Witness attendance may be compelled through the use of a

subpoena. Fed. R. Civ. P. 45. Notice is sufficient to

compel the attendance of a party. Pinkham v. Paul, 91

F.R.D. 613 (D. Me. 1981). If the subpoena also compels

production of documents, the documents to be produced

must be identified in the deposition notice or an attachment

to it. Fed. R. Civ. P. 30 (a)(1) and 30 (b)(2).

(e) General rule is that the plaintiff must appear for his

deposition in the forum. Martin Engineering Co. v.

Vibrators, Inc., 20 Fed. R. Serv. 2d (Callaghan) 486 (E.D.

Ark. 1975). But, the place of the deposition is within the

sole discretion of the court and it may alter the location as it

deems appropriate. Young v. Clearing, 30 Fed. R. Serv. 2d

(Callaghan) 789 (E.D. Pa. 1980). Court will consider

convenience, expense, etc.

(f) Under Fed. R. Civ. P. 30(b)(6), a party may take the

deposition of a corporation, association, or governmental

agency by noticing the organization and specifying the

scope of the matters it wishes to inquire into. The

organization must then designate the witness who will

testify. Any admissions made by the designated witness

are admissible against the organization. Sanders v. Circle

K. Corp. 137 F.R.D. 292 (D. Az. 1991); Moore v. Pyrotech

Corp., 137 F.R.D. 356 (D. Kan. 1991). See King v. Pratt &

Whitney, 161 F.R.D. 475 (S.D. Fla. 1995) for a discussion

of the proper procedure and scope of questioning at a

deposition noticed pursuant to Rule 30(b)(6).

(g) No more than 10 depositions under this rule and under Rule

30 may be taken by all the plaintiffs, all the defendants, or

all the third-party defendants without leave of court.

Further, no witness may be deposed more than once.

(h) A deposition "may be recorded by audio, audiovisual, or

stenographic means" unless the court orders otherwise. Fed.

R. Civ. P. 30 (b)(3).

(1) The party taking the deposition must state in the

notice the method by which the testimony will be

recorded.

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(2) With prior notice to the deponent and the other

parties, a party may designate and arrange for

another method of recording the testimony, at that

party's expense.

(3) Any party may arrange for a transcript to be made

from a deposition recorded by other than

stenographic means.

(4) If a nonstenographically recorded deposition is used

at trial, those portions used must be transcribed.

“On any party’s request, deposition testimony

offered in a jury trial for any purpose other than

impeachment must be presented in nontranscript

form, if available, unless the court for good cause

orders otherwise. Fed. R. Civ. P. 32(c).

(i) Fed. R. Civ. P. 30(b)(4) provides deposition can be taken

by telephone or other remote electronic means (e.g. satellite

television) upon stipulation of parties or court order. This

is a cost effective means to secure evidence, but obvious

limitations to implementation exist. See Baker v. Institute

for Scientific Information, 134 F.R.D. 117 (E.D. Pa. 1991).

The deposition is taken where the witness answers the

questions.

(j) If, prior to the conclusion of the deposition, the deponent or

any party requests to review the deposition before it is

filed, the deponent will be given 30 days after the transcript

or recording is available to review and correct it. Fed. R.

Civ. P. 30 (e). Purpose of review is to correct substantive

or transcription errors of the court reporter, not to permit

broad amendment of testimony. Greenway v. International

Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992) (Sixty-

four corrections in 200 page deposition, many of them

substantive, not permitted.)

(k) As a general rule, “counsel should not engage in any

conduct during a deposition that would not be allowed in

the presence of a judicial officer.” Armstrong v. Hussman

Corp., 163 F.R.D. 299, 303 (E.D. Mo. 1995).

(l) Depositions are presumptively limited to one day of seven

hours. However, the court “must allow additional time . . .

if needed for a fair examination of the deponent or if the

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deponent or another person, or other circumstance, impedes

or delays the examination.” Fed. R. Civ. P. 30(d)(1)

II. TAKING AND DEFENDING ORAL DEPOSITIONS – PRACTICE TIPS

A. Defending Depositions.

1. Witness preparation. Every witness should be prepared prior to the

deposition, but the nature and degree of pre-deposition preparation

depends on the type of witness and his prior testimonial

experience.

2. Your preparation should be designed to make all witnesses

informed about and comfortable with the deposition process and

capable of reciting the relevant information they possess in a

fashion most favorable to your position in the litigation. It should

include:

(a) A review of the relevant evidence likely to be elicited

during questioning. Let the witness tell the story first, then

go back over parts and explore extent of witness'

knowledge, recollection, etc.

(b) A review of all documents which the witness is likely to

see during the deposition.

(1) In some cases there may be documents which exist,

but you decide the witness should not review prior

to testifying. (e.g. a statement by another witness

substantially similar to the deponent when the

opposing counsel is likely to raise a claim that they

collaborated on their testimony. The witness should

be told of the existence of the document and what

its general nature is so that he will be confident in

declaring that he has not previously seen it when it

is shown to him.

(2) Caveat: use of privileged documents to prepare a

witness for deposition testimony may result in the

waiver of the privilege. Sprock v. Peil, 759 F.2d

312 (3d Cir. 1985); S & A Painting Co. Inc., v.

O.W.B. Corp., 103 F.R.D. 407 (W.D. Pa. 1984).

See the Note of Advisory Committee on Rules,

1993 Amendment to Rule 26(a)(2)(B) ("[L]itigants

should no longer be able to argue that materials

furnished to their experts to be used in forming their

E-6

opinions - whether or not ultimately relied upon by

the expert - are privileged . . . .")

(3) Ensure that deponent has reviewed all his prior

statements before being deposed. See Sims v.

Lafayette Parish School Bd., 140 F.R.D. 338 (W.D.

La. 1992).

(c) Instruction about the three primary purposes of a

deposition:

(1) To fix the witness' testimony so that it may be

altered at trial only at the expense of the witness'

credibility;

(2) To find out what the witness knows;

(3) To assess how credible the witness' testimony will

be at trial.

(d) A reminder that the witness will be testifying under oath

and that he is required to tell the truth. If opposing counsel

asks what the witness was told in preparation, the one

instruction that should always be recited is that he was told

to tell the truth.

(e) A warning against volunteering information--Being truthful

doesn't require the witness to volunteer information that

hasn't been elicited by questioning.

(f) A reminder to listen carefully to questions and to ask for

the question to be repeated or for clarification if he doesn't

understand the question.

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(g) A suggestion that questions which can't be answered with

"yes" or "no" even though they are phrased to elicit one of

those responses, can and should be qualified with

additional information. The opposing counsel is not

"entitled to a yes or no answer" to any question.

(h) A reassurance that "I don't know" and "I don't remember"

are perfectly acceptable responses if they are truthful.

However, the questioner may ask for estimates and "best

guesses" and there is no rule against these, so long as the

record is clear that the response is an estimate.

(i) A reassurance that the preparation session you are

conducting is perfectly appropriate and that it is acceptable

to relate any of it that the witness can recall if he is

questioned about it. Tell your witness, "If you remember

nothing else about this session, please recall that I told you

to tell the truth."

(j) A warning that the deposition process and the opposing

counsel should be taken very seriously. The questioner is

not there to help the witness, nor to do him any favors.

Treat opposing counsel with courtesy, but there's no reason

to be overly "friendly." Don't joke around. A cute remark

may not seem so funny when read in court. Don't converse

with anyone, the court reporter, opposing counsel, or other

attendees about the subject matter of the litigation or

related aspects. There is no such thing as a remark "off the

record."

(k) A suggestion that the witness should pause and think before

answering. This will give you time to object and the

witness time to formulate a coherent response.

(l) An instruction that the witness should ask for a break when

he needs one. The deposition is not an endurance contest.

Confirm that the deposition will probably take some time

and that the witness should not assume that it's nearly over

simply because he believes he has told his entire story.

(m) A warning that the witness should not agree to do anything

for counsel after the deposition. The witness has no

obligation to do additional work or research, to improve his

memory, or to fill in forgotten details.

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(n) An instruction that, if you object, he should stop talking

and listen to the objection. Tell the witness that the

objection is made only to preserve it for later, but that

frequently, listening to the objection will point out

deficiencies in the question that may not otherwise be

apparent.

3. Preparing expert witnesses. Preparing an expert witness for his

deposition poses special problems.

(a) Don't assume that the expert knows or recalls all of the

"general witness" instructions. It's the witnesses who have

been deposed most frequently who violate them most often.

(b) Ensure that your witness understands your theory of the

case and how his testimony fits into it. Prepare him to

resist the temptation to offer "off the cuff" opinions on

matters you have not asked him to review.

(c) Help the witness anticipate where his opinion will be

assaulted and prepare a credible response to good criticisms

of his view. Don't deprive your expert of your knowledge

about where your adversary's emphasis will be placed.

4. Intra-deposition Issues

(a) Suspending the deposition to seek relief from the court.

Fed. R. Civ. P. 30(d)(3) provides that either party or a

deponent can suspend the taking of the deposition for the

time necessary to petition the court for a protective order

when the deposition is being conducted in such a manner so

as to annoy, embarrass, or oppress the deponent or party.

See Smith v. Loganport Comm. School Corp., 139 F.R.D.

637 (N.D. Ind. 1991).

(b) Objectionable questions.

(1) Fed. R. Civ. P. 32(d)(3)(A) and (B) note:

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(A) “An objection to a deponent’s competence

– or to the competence, relevance or

materiality of testimony – is not waived by

a failure to make the objection before or

during the deposition, unless the ground

for it might have been corrected at that

time.”

(B) “An objection to an error or irregularity at

an oral examination is waived if:

(i) it relates to the manner of taking the

deposition, the form of a question or

answer, the oath or affirmation, a

party’s conduct, or other matters that

might have been corrected at that

time; and

(ii) it is not timely made during the

deposition.”

(iii)

(2) Improper questions include: ambiguous or unintelligible,

compound, argumentative, leading (on direct), one that calls for a

narrative answer, and one that misquotes the witness' testimony.

(3) Counsel should raise only those objections that will be

waived if not made at the deposition. Fed. R. Civ. P. 30,

Committee Notes.

(4) Any objections are to be stated “concisely in a

nonargumentative and nonsuggestive manner.” Fed. R. Civ. P.

30(c)(2). See Danaj v. Farmers (N.D. Okla. 1995)(defense counsel

required to cease “speaking objections” and other “obstructionist

tactics” at oral deposition).

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(5) The objections made will be entered upon the

deposition, however, the testimony is taken subject

to the objections. Fed. R. Civ. P. 30(c)(2). "A

person may instruct a deponent not to answer only

when necessary to preserve a privilege, to enforce a

limitation on evidence directed by the court, or to

present a motion [to suspend the taking of the

deposition because it is being conducted in bad

faith, or in a manner to annoy, embarrass, or

oppress the deponent or the party]." Fed. R. Civ. P.

30(c)(2). Thus, unless the question seeks privileged

information, the witness must answer subject to the

objection. See, e.g., Ralston Purina Co. v.

McFarland, 550 F.2d 967 (4th Cir. 1977);

International Union of Elec. Radio and Mach.

Workers v. Westinghouse Elec. Corp., 91 F.R.D.

277 (D.D.C. 1981); Coates v Johnson & Johnson,

85 F.R.D. 731 (N.D. Ill. 1980); Perrignon v. Bergen

Brunswig Corp., 77 F.R.D. 455 (N.D. Cal. 1978);

Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 (E.D.

Tenn. 1977).

(c) “Private conferences between deponents and their attorneys

during the taking of a deposition are generally considered

improper.” Langer v. Presbyterian Medical Center of

Pennsylvania, 1995 WL 79520 at 11 (E.D. Pa. Feb. 17,

1995), vacated on other grounds 1995 WL 395937 (E.D.

Pa. July 3, 1995). The only exception is a conference to

determine whether a privilege should be asserted. Id. See

also Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa.

1993).

(d) At the conclusion of opposing counsel's questions, weigh

very carefully whether you will question the witness. If

you question, you provide your opponent with an additional

opportunity for questioning.

5. Logistical considerations. The recording requirements for

depositions, Fed. R. Civ. P. 30(b)(3), make it mandatory that

counsel defending a deposition consider the logistical

arrangements for transcription made by others. Remember:

(a) A deposition notice which does not set forth the method of

recording is defective;

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(b) Any notary public with a cassette recorder is qualified to

record a deposition;

(c) If the method of recording by which counsel intends to take

a deposition is likely to capture the testimony inaccurately,

it may be necessary to arrange for some other means of

recording it.

B. Taking Depositions.

1. Objectives.

(a) To discover admissible evidence and develop information

that will lead to evidence.

(b) To obtain admissions and create weaknesses in opponent's

case.

(c) To learn what witness knows about the case and to fix his

testimony.

(d) To discover strengths and weaknesses of opponent's case.

(e) To develop material for cross-examination.

(f) To evaluate the witness and opposing counsel.

(g) To perpetuate testimony.

(h) To display your capabilities and strengths of your case.

(i) To authenticate and lay the foundation for admission of

documents into evidence.

(j) To lay the foundation for motions to compel and

dispositive motions.

(k) To improve your posture in settlement negotiations.

2. Preparation.

(a) Same preparation as you would for trial testimony.

(b) Review all previous discovery, organize documents to be

used at deposition, and prepare outline of questioning.

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(c) A form outline for expert testimony is a good beginning,

but must be adapted for the particular facts of your

litigation.

3. Logistics.

(a) Retain court reporter. Usually hire reporter in the town

where the witness lives rather than taking one with you.

(i) Make telephonic contact with reporter to confirm

date/time of deposition.

(ii) If deposition deals with technical or scientific

subjects, ask for reporter with experience in those

areas.

(iii) Court reporters often have offices or conference

facilities suitable for taking depositions and will

make those facilities available for the deposition.

(iv) Check to make sure the reporter will provide the

kinds of services necessary (i.e. condensed or

electronic transcripts, .pdf files for exhibits?)

(b) Arrange for the place to conduct the deposition if it is not at

the witness' or court reporter's office.

(c) Send out notice to all parties, and court reporter. Arrange

for subpoena if non-party is to be deposed.

(a) Double check with court reporter a day or two ahead of

time.

(b) Make the court reporter aware of anything out of the

ordinary that is likely to disrupt the proceeding or make the

court reporter uncomfortable.

4. Relationship with the deponent.

(a) Make a conscious choice about the style you will display

during the deposition. Consider the nature of the witness

(e.g. lay or expert; fact or specially retained), the

relationship of the witness to the litigation, how the witness

is likely to view you, and how your performance may effect

the witness' view of you in the trial.

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(b) Can change tone and/or style during course of deposition,

but if you must "get tough" with the witness, do it after you

have gotten all of the concessions you can by being "nice."

(d) Establish early in the deposition that you have command of

the facts of the case and that you have prepared for this

deposition. This is particularly true for expert witnesses

who may be tempted to inflate their credentials or the

strength of their opinions unless you convince them that it

is dangerous to do so.

5. Relationship with counsel.

(a) Establish control. Arrive early and set the room up as you

want it (with deference to the needs and requests of your

court reporter).

(b) NEVER let opposing counsel know that your time is

limited (e.g. that you need to catch a particular flight

home).

(c) Your attitude toward opposing counsel when first entering

the room can be very significant to the deponent's

perception of you. E.g., if you are courteous and friendly

and engage in some "light-hearted" banter, the witness may

think that you are not as big an ogre as his lawyer told him

you were.

6. Interrogating the witness.

(a) Opening explanation and agreement.

(i) Have court reporter swear witness and, if relevant,

attach a copy of notice to record. Unless waived,

start with the 30(b)(5)(A) litany.

(ii) Introduce yourself on the record and cover

following points:

a) Who you represent and purpose of

deposition.

b) You will ask questions and witness will

answer under oath and court reporter will

record the exchange verbatim.

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c) Not trying to trick witness, just want to

know what information he has that is

relevant and material to the case.

d) Ask witness to agree to ask for clarification

of any question that he/she does not

understand. If question is answered you

must assume that witness understood

question.

e) If need break just say so.

f) Any reason why can't take the deposition at

this time.

g) Any plans to move or change positions in

future.

(b) Inquire about the witness' preparation.

1. What documents were reviewed?

2. Who did witness talk to about case?

3. What was substance of any conversation with

anyone (including counsel) about case/testimony?

(c) Inquire about documents produced.

1. If documents were to be produced go over each one

individually and have deponent identify.

2. If documents were not produced that were requested

ask questions to determine who may have

custody/control and why they weren't produced.

(d) Miscellaneous

1. Frequently use catch-all questions.

"Have you told me everything you can remember?"

“Is there anything that would refresh you memory?"

"What else do you recall?"

"Is that all you can remember?"

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4. Use pregnant pauses to allow the witness to

volunteer information.

5. Clarify special terms.

“When I refer to ‘peer-reviewed journals’ what do

you understand that to mean, if anything?”

6. Mark all documents that the witness reviews and

refer to the documents by exhibit number.

(e) Deal with evasive witnesses.

1. Object to non-responsive answers.

2. Break questions down.

3. Persist.

4. Alert the witness to the proposition that you will not

conclude the deposition without responsive

answers. (“Shall we break for supper or keep

going?”)

(f) Inquire about the witness’ knowledge of other discoverable

information.

(g) Respond appropriately to objections.

1. Listen/learn. Re-phrase if you should.

2. Get an answer nonetheless. “You may answer the

question."

3. Alert opposing counsel that you know the rules.

"Are you instructing the witness not to answer?"

4. Make a complete record. "Are you refusing to

answer and, if so, are you doing so on advice of

counsel?"

(h) Listen to the answer (you may learn something).

(i) Take notes. Review and ask follow-up questions before

concluding your examination.

F-1

FEDERAL LITIGATION COURSE

TAB F

TEMPORARY RESTRAINING ORDERS &

PRELIMINARY INJUNCTIONS

“Plaintiffs may attempt to force Government action or restraint in important operational matters

or pending personnel actions through motions for temporary restraining orders (TRO) or

preliminary injunctions (PI). Because these actions can quickly impede military functions,

immediate and decisive action must be taken.” AR-27-40, para. 3-5.

I. INTRODUCTION.

A. Types of Injunctive Relief.

1. Temporary Restraining Order [TRO].

2. Preliminary Injunction [PI].

3. Permanent Injunction.

II. TEMPORARY RESTRAINING ORDERS.

A. General.

1. Purpose: prevent irreparable injury to moving party until court can hear

motion for preliminary injunction.

2. Governing rules Fed. R. Civ. P. 65(b); RCFC 65(b).

B. Procedure.

1. Notice.

a. General rule: notice is required before entry of a TRO. E.g.,

Thompson v. Ramirez, 597 F. Supp. 726 (D.P.R. 1984).

--Notice to successful bidder. RCFC 65(f)(2).

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b. Exception:

(1) Movant will suffer irreparable injury if adverse party

afforded opportunity to be heard; and

(2) Movant's attorney certifies efforts made to give notice and

the reasons why notice should not be required. Fed. R. Civ.

P. 65(b); RCFC 65(b). First Technology Safety Systems v.

Depinet, 11 F.3d 641 (6th Cir. 1993); Thompson v.

Ramirez, 597 F. Supp 726 (D. P.R. 1984).

2. Term of the order: 10 days, with possible 10 day extension. Fed. R. Civ.

P. 65(b); RCFC 65(b).

3. Security. Fed. R. Civ. P. 65(c); RCFC 65(c). Rule 65(c) requires

applicants for restraining orders or preliminary injunctions to give as

security a sum deemed proper by the court for payment of such costs and

damages as may result to any party who is found to have been wrongfully

restrained or enjoined. Fireman’s Fund Ins. Co. v. S.E.K. Constr. Co.,

436 F.2d 1345 (10th Cir. 1971). A bond is not required when the US is

the petitioner. Squaxin Island Tribe v. State of Washington, 781 F.2d 715,

723 (9th Cir. 1986).

4. Moving for hearing for preliminary injunction -- takes precedence over

other matters. Fed. R. Civ. P. 65(b); RCFC 65(b).

5. Burden of proof.

a. General. Burden of proof is on the moving party. Crowther v.

Seaborg, 415 F.2d 437 (10th Cir. 1969); Colorado Environmental

Coalition v. Bureau of Land Management, 932 F.Supp. 1247, 1251

(D. Colo. 1996) (citing Seaborg).

b. Elements. The standard four prong test for injunctive relief

(Trucke v. Erlemeier, 657 F. Supp. 1382, 1389 (N.D. Iowa 1987)

(citing Younger v. Harris, 401 U.S. 37 (1970)); Minneapolis Urban

League v. City of Minneapolis, 650 F. Supp. 303 (D. Minn.

1986)):

(1) Substantial likelihood of success on the merits.

(2) Irreparable injury to movant if relief is denied.

(3) Relative harm to the opposing party (balance of harms).

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(4) Impact on the public interest.

6. Appeal.

a. General rule: orders granting, denying, modifying, or dissolving

TROs are not appealable. E.g., Geneva Assurance Syndicate, Inc.

v. Medical Emergency Services Associates, 964 F.2d 599 (7th Cir.

1992); Fernandez-Roque v. Smith, 671 F.2d 426 (11th Cir. 1982).

b. Exceptions:

(1) Extension of TRO substantially beyond time limits of Rule

65(b). In effect, an extension beyond 20 days converts the

TRO to a preliminary injunction, which is appealable under

28 U.S.C. 1292(a)(1). Sampson v. Murray, 415 U.S. 61

(1974); United States v. Board of Education of City of

Chicago, 11 F.3d 668 (7th Cir. 1993).

(2) Denial of the TRO would result in irreparable harm to

national security or other important government interest

under circumstances in which monetary damages would be

inadequate . United States v. Washington Post Co., 446

F.2d 1322 (D.C. Cir. 1971) (Note that the appellate court in

this case does not address the question of its power to

review the denial of the TRO as an interlocutory matter so

it is not clear that either party ever raised this issue;

instead, the appellate court merely reviews the district

court’s substantive decision to deny the TRO and then

reverses that decision on national security grounds, grants

the TRO, and remands for a hearing on a preliminary

injunction.).

(3) TRO denied following notice and hearing under

circumstances in which such denial was tantamount to the

denial of a preliminary injunction. Religious Technology

Center v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989).

III. PRELIMINARY INJUNCTIONS.

A. General.

1. Purpose: prevent irreparable injury during pendency of lawsuit.

2. “A Preliminary Injunction is an extraordinary remedy never awarded as of

right.” Munaf v. Geren, 128 S.Ct. 2207, 2218-2219 (2008).

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2. Governing rules: Fed. R. Civ. P. 65(a); RCFC 65(a).

B. Procedure.

1. Notice and hearing. Fed. R. Civ. P. 65(a)(1); RCFC 65(a)(1). United

States v. Board of Education of City of Chicago, 11 F.3d 668 (7th Cir.

1993).

a. Type of hearing. See, e.g., Drywall Tapers and Pointers of Greater

New York v. Local 530 of Plasterers and Cement Masons

International Association, 954 F.2d 69 (2d Cir. 1992); International

Molders' & Allied Workers' Local Union No. 164 v. Nelson, 799

F.2d 547, 555 (9th Cir. 1986).

b. Consolidation of trial on the merits. Fed. R. Civ. P. 65(a)(2);

Abraham Zion Corp. v. Lebow, 761 F.2d 93, 100-1 (2d Cir. 1985).

Cf. Berry v. Bean, 796 F.2d 713, 719 (4th Cir. 1986)

(consolidation of merits on appeal).

2. Security. Fed. R. Civ. P. 65(c); RCFC 65(c).

3. Appeal.

a. Orders granting, denying, modifying, or dissolving preliminary

injunctions are appealable. 28 U.S.C. § 1292(a)(1).

b. Standard of appellate review: abuse of discretion. See, e.g.,

McKeesport Hospital v. Accreditation Council for Graduate

Medical Education, 24 F.3d 519 (3d Cir. 1994); King v. Innovation

Books, 976 F.2d 824, 828 (2d Cir. 1992); Abbott Labs v. Mead

Johnson Co., 971 F.2d 6, 12 (7th Cir. 1992); Hale v. Department of

Energy, 806 F.2d 910, 914 (9th Cir. 1986).

c. Appellate forum. 28 U.S.C. §§ 1292(c); 1295(a)(2).

C. Burden of Proof

1. Burden is on the moving party. Granny Goose Foods, Inc. v. Brotherhood

of Teamsters and Auto Truck Drivers, 415 U.S. 423 (1974).

2, “A plaintiff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Winter v. Natural

Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008).

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3. Elements. See generally Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991),

rev'g, 747 F. Supp. 1160 (E.D.N.C. 1990); Cunningham v. Adams, 808

F.2d 815 (11th Cir. 1987); Zardui-Quintana v. Richard, 768 F.2d 1213,

1216 (11th Cir. 1985).

a. Substantial likelihood of success on the merits. Guerra v. Scruggs,

942 F.2d 270 (4th Cir. 1991), rev'g, 747 F. Supp. 1160 (E.D.N.C.

1990); Berry v. Bean, 796 F.2d 713 (4th Cir. 1986); Tremblay v.

Marsh, 750 F.2d 3 (1st Cir. 1985), rev'g, 584 F. Supp. 224 (D.

Mass. 1984).

b. Irreparable injury to the movant is likely if relief is denied.

(1) “Our frequently reiterated standard requires plaintiffs

seeking preliminary relief to demonstrate that irreparable

injury is likely in the absence of an injunction.” Winter v.

Natural Resources Defense Council, Inc., 129 S.Ct. 365,

375 (2008).

(2) Irreparable harm satisfied by plaintiff demonstrating a

“significant risk that he or she will experience harm that

cannot be compensated after the fact by monetary

damages.” RODA Drilling Co. v. Siegal, 552 f.3d 1203,

1210 (10th Cir. 2009), citing Greater Yellowstone Coal v.

Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003).

(3) Discharge from government employment. Sampson v.

Murray, 415 U.S. 61 (1974); Guerra v. Scruggs, 942 F.2d

270 (4th Cir. 1991), rev'g, 747 F. Supp. 1160 (E.D.N.C.

1990). Cf. Martin v. Stone, 759 F. Supp. 19 (D.D.C. 1991).

But cf. Tully v. Orr, 608 F. Supp. 1222 (E.D.N.Y. 1985).

(4) Involuntary military service. Patton v. Dole, 806 F.2d 24

(2d Cir. 1986).

(5) Preserving a damages remedy. See, e.g., Airlines

Reporting Corp. v. Barry, 825 F.2d 1220 (8th Cir. 1987);

Tri-State Generation & Transmission Ass'n, Inc. v.

Shoshone River Power, Inc., 805 F.2d 351, 355-56 (10th

Cir. 1986); Teradyne, Inc. v. Mostek Corp., 797 F.2d 43,

52-53 (1st Cir. 1986).

(6) Alleged constitutional deprivations. Elrod v. Burns, 427

U.S. 347 (1976) (plurality opinion); Covino v. Patrissi, 967

F-6

F.2d 731 (2d Cir. 1992); Mariani Giron v. Acevedo Ruiz,

834 F.2d 238 (1st Cir. 1987).

(7) Loss of government contract; loss of ability to compete for

contract. E.g., M. Steinthal & Co. v. Seamans, 455 F.2d

1289 (D.C. Cir. 1971).

(a) Plaintiff can recover bid preparation costs. Morgan

Business Assoc. v. United States, 619 F.2d 892 (Ct.

Cl. 1980). Compare Ainslie Corp. v. Middendorf,

381 F. Supp. 305 (D. Mass. 1974), with Cincinnati

Electronics Corp. v. Kleppe, 509 F.2d 1080 (6th

Cir. 1975).

(b) Plaintiff cannot recover anticipated profits. Keco

Indus., Inc. v. United States, 428 F.2d 1233 (Ct. Cl.

1970). See DLM & A, Inc. v. United States, 6 Cl.

Ct. 329 (1984).

(c) Court generally will not order the award of a

contract to a successful plaintiff. Delta Data Sys.

Corp. v. Webster, 744 F.2d 197 (D.C. Cir. 1984);

Golden Eagle Refining Co. v. United States, 4 Cl.

Ct. 613 (1984). But cf. Ulstein Maritime, Ltd. v.

United States, 833 F.2d 1052 (1st Cir. 1987).

c. Relative harm to the opposing party.

(1) a/k/a “Balancing the equities.”

(2) “In each case, courts ‘must balance the competing claims of

injury and must consider the effect on each party of the

granting or withholding of the requested relief.’” Amoco

Production Co. v. Gambell, 480 U.S. 531, 542 (1987).

(3) Discharge from government service. Pauls v. Secretary of

the Air Force, 457 F.2d 294 (1st Cir. 1972).

(4) Bid protests. Design Pak, Inc. v. Secretary of the Treasury,

801 F.2d 525 (1st Cir. 1985); M. Steinthal & Co. v. Sea-

mans, 455 F.2d 1289 (D.C. Cir. 1971).

(a) Expiration of bids. See Sterlingwear of Boston, Inc.

v. United States, 11 Cl. Ct. 517 (1987).

(b) End of fiscal year.

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(c) Impairment of government program.

(d) Interest in smooth, uninterrupted procurement

process.

(e) Injury to third parties (successful bidder).

(f) Loss of money already expended on contract (post-

award). See Solon Automated Serv., Inc. v. United

States, 658 F. Supp. 28 (D.D.C. 1987).

d. Impact on the public interest.

(1) “In exercising their sound discretion, courts of equity

should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

(2) "But where an injunction is asked which will adversely

affect a public interest, even temporarily, an injunction

bond cannot compensate, the court may in the public

interest withhold relief until a final determination of the

right of the parties, though the postponement may be

burdensome to the plaintiff." Yakus v. United States, 321

U.S. 414, 441 (1944). See also Pruner v. Department of

Army, 755 F. Supp. 362 (D. Kan. 1991) (Injunctive relief

pending military's processing of conscientious objector

application "would seriously interfere with the public

interest in efficient deployment of troops in connection

with Operation Desert Shield.").

(3) “We give great deference to the professional judgment of

military authorities concerning the relative importance of a

particular military interest.” Winter v. Natural Resources

Defense Council, Inc. 129 S.Ct. 365, 375 (2008), citing

Goldman v. Weinberger, 475 U.S. 503, 507 (1986). But

see, Haitian Centers Council v. McNary, 969 F.2d 1326 (2d

Cir. 1992). (the government may not assume that the public

interest lies solely with it.)

4. Variations on the general rule:

a. D.C. Circuit: "Under the well known standard set forth in this

Circuit, four factors control the Court's discretion to grant a motion

for a preliminary injunction: the likelihood that the plaintiff will

F-8

prevail on the merits, the degree of irreparable injury that the

plaintiff will suffer if the injunction is not issued, the harm to the

defendant if the motion is granted, and the interest of the public. . .

In the event that the last three factors favor the issuance of an

injunction, a movant can satisfy the first factor by raising a serious

question on the merits of the case." Washington Metropolitan

Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.

Cir. 1977).

b. 1st Circuit.

(1) "We recognize that a finding attributing great weight to one of

the four components may make up for a relatively weak finding

as to another. If the chances of success are good, but not the

highest, and the adverse effect on the public interest very

serious should the prognostication prove mistaken, the public

interest might require that the injunction be denied." Mariani

Giron v. Acevedo Ruiz, 834 F.2d 238, 240 (1st Cir. 1987).

(2) Post-Winter: Vaqueria Tres Monjitas, Inc. V. Irizarry, 587 F.3d

464 (1st Cir. 2009)(Sliding scale applied; no mention of

Winter.)

c. 2d Circuit.

(1) "The standard in this Circuit for the issuance of a preliminary

injunction requires the moving party to establish (1) irreparable

harm and (2) either (a) a likelihood of success on the merits, or

(b) a sufficiently serious ground for litigation and a balance of

the hardships tipping decidedly in its favor." Britt v. United

States Army Corps of Eng'rs, 769 F.2d 84 (2d Cir. 1985).

(2) Post-Winter: “We have found no command from the Supreme

Court that would foreclose the application of our established

‘serious questions’ standard as a means of assessing a movant’s

likelihood of success on the merits.” Citigroup Global Markets,

Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d

30, 38 (2d Cir. 2010).

d. 3d Circuit: Plaintiff must show both likelihood of success on the

merits and probability of irreparable harm, and the district court

should consider the effect of issuance of injunction on other

interested persons and the public interest. Campbell Soup Co. v.

ConAgra, Inc., 977 F.2d 86 (3d Cir. 1992).

e. 4th Circuit.

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(1) "On a motion for a preliminary injunction, the district court is

first to balance the likelihood of harm to the plaintiff if the

temporary injunction is not issued against the likelihood of

harm to the defendant if the injunction is issued. If the harm to

the plaintiff greatly outweighs the harm to the defendant, then

enough of a showing has been made to permit the issuance of

an injunction, and the plaintiff need not show a likelihood of

success on the merits, for a grave or serious question is

sufficient. But as the harm to the plaintiff decreases, when

balanced against harm to the defendant, the likelihood of

success on the merits becomes important." Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048 (4th

Cir. 1985); Blackwelder Furniture Co. v. Selig Mfg. Co., 550

F.2d 189 (4th Cir. 1977); see also, Guerra v. Scruggs, 942 F.2d

270 (4th Cir. 1991).

(2) But see, Real Truth About Obama, Inc. v. Fed. Election

Comm’n, 575 F.3d 342, 347 (4th Cir. 2009)(holding that the

circuit’s sliding scale test, which permitted “flexible interplay”

among the elements, “may no longer be applied” after Winter.)

f. 5th Circuit: The four prerequisites for the relief of a preliminary

injunction are as follows: (1) a substantial likelihood that plaintiff

will prevail on the merits, (2) a substantial threat that plaintiff will

suffer irreparable injury if the injunction is not granted, (3) the

threatened injury to plaintiff must outweigh the threatened harm

the injunction may do to defendant, and (4) granting the

preliminary injunction will not disserve the public interest.

Wiggins v. Secretary of the Army, 751 F. Supp. 1238 (W.D. Tex.

1990), aff'd, 946 F.2d 892 (5th Cir. 1991).

g. 6th Circuit.

(1) Where factors other than likelihood of success on the merits all

are strongly in favor of a preliminary injunction, an injunction

may be issued if the merits present a sufficiently serious

question to justify further investigation. In re Delorean Motor

Co., 755 F.2d 1223, 1230 (6th Cir. 1985).

(2) Looks like the 9th Circuit’s “serious questions” test.

h. 7th Circuit: "P x H > (1 - P) x H."

(1) A district court may grant a preliminary injunction "only if the

harm to the plaintiff if the injunction is denied, multiplied by

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the probability that the denial would be an error (that the

plaintiff, in other words, will win at trial), exceeds the harm to

the defendant if the injunction is granted, multiplied by the

probability that granting the injunction would be an error."

American Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d

589 (7th Cir. 1985). See also Schultz v. Frisby, 807 F.2d 1339,

1343 (7th Cir. 1986), aff'd on rehearing, 822 F.2d 642 (7th Cir.

1987) (en banc); Roland Mach. Co. v. Dresser Ind., Inc., 749

F.2d 380, 386-88 (7th Cir. 1984).

(2) Post-Winter: “How strong a claim on the merits is enough

depends on the balance of harms; the more net harm an

injunction can prevent, the weaker the plaintiff’s claim on the

merits can be while still supporting some preliminary relief.”

Hoosier Energy Rural Elec. Co-Op., Inc. v. John Hancock Life

Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009).

i. 8th Circuit.

(1) "[T]he essential inquiry in weighing the propriety of issuing a

preliminary injunction is whether the balance of other factors

tips decidedly toward the movant and the movant has also

raised questions so serious and difficult as to call for more

deliberate investigation." General Mills, Inc. v. Kellogg Co.,

824 F.2d 622, 624-25 (8th Cir.1987).

(2) “Serious” and “difficult” questions?

(3) Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978

(8th Cir. 2011)(Citing Winter, applied traditional test;

irreparable harm can flow from a violation of NEPA itself.)

j. 9th Circuit.

(1) "To succeed on a motion for a preliminary injunction the

movant must show 'either (1) a combination of probable

success on the merits and a possibility of irreparable injury or

(2) that serious questions are raised and the balance of the

hardships tips sharply in the moving party's favor.'" Hale v.

Department of Energy, 806 F.2d 910, 914 (9th Cir. 1986),

quoting Los Angeles Memorial Coliseum Comm'n v. National

Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). But cf.

Hartikka v. United States, 754 F.2d 1516 (9th Cir. 1985)

(Sampson v. Murray controls in public employment cases).

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(a) But see, Winter v. Natural Resources Defense Council, 555

U.S. 7 (2008), “We agree with the Navy that the Ninth

Circuit’s ‘possibility’ standard is too lenient. Our

frequently reiterated standard requires plaintiffs seeking

preliminary relief to demonstrate that irreparable injury is

likely in the absence of an injunction.”

(b) Also see, Alliance for the Wild Rockies v. Cottrel, 632 F.3d

1127, 1131-1132 (9th Cir. 2011)(“For the reasons that

follow, we hold that the ‘serious questions’ approach

survives Winter when applied as part of the four-element

Winter test. In other words, ‘serious questions going to the

merits’ and a hardship balance that tips sharply toward the

plaintiff can support issuance of an injunction, assuming

the other two elements of the Winter test are also met.”)

k. 10th Circuit: "Where the movant for a preliminary injunction

prevails on the factors other than likelihood of success on the

merits, it is ordinarily sufficient that the plaintiff has raised

questions going to the merits so serious, substantial, difficult, and

doubtful as to make them a fair ground for litigation."

--City of Chanute v. Kansas Gas & Electric Co., 754 F.2d

310, 314 (10th Cir. 1985); Lundgrin v. Claytor, 619 F.2d

61, 63 (10th Cir. 1980).

l. 11th Circuit: To obtain a preliminary injunction, the plaintiff must

prove: (1) that it has a substantial likelihood of success on the

merits; (2) that it will suffer irreparable harm if the injunction is

denied; (3) that the injury to the moving party from denial of

injunctive relief outweighs the damage to the other party if it is

granted; and (4) that the injunction will not harm the public

interest.

--GSW, Inc. v. Long County, Georgia, 999 F.2d 1508 (11th

Cir. 1993).

m. Fed. Circuit: In determining whether to issue a preliminary

injunction, there are four relevant factors: (1) degree of immediate

irreparable harm to the plaintiff; (2) degree of harm to the party to

be enjoined; (3) the impact of the injunction on public policy

considerations, and (4) the likelihood of plaintiff's ultimate success

on the merits. These competing elements must be simultaneously

weighed.

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--We Care, Inc. v. Ultra-Mark, International Corp. 930 F.2d

1567 (Fed. Cir. 1991).

IV. PERMANENT INJUNCTIONS.

A. Elements. Monsanto Co., et al., v. Geertson Seed Farms, et al., 130 S.Ct. 2743

(2010).

1. Plaintiff has suffered an irreparable injury.

2. Remedies available at law, such as monetary damages, are inadequate to

compensate for that injury.

3. Considering the balance of hardships between plaintiff and defendant, a

remedy in equity is warranted.

4. Public interest would not be disserved by a permanent injunction.

IV. PREPARING THE GOVERNMENT'S RESPONSE.

A. Gathering Facts, Documents, and Experts.

B. Strategy -- Government's Options.

C. Defenses.

1. Facts.

2. Legal issues.

FEDERAL LITIGATION COURSE

CHAPTER G

LITIGATION AT THE COURT OF FEDERAL CLAIMS (“COFC”)1

I. INTRODUCTION. ............................................................................................................ 1

A. Court of National Jurisdiction. .................................................................................... 1

B. Jurisdiction ................................................................................................................. 1

C. Limitation on Remedies .............................................................................................. 1

D. Composition ............................................................................................................... 2

E. Location. ..................................................................................................................... 2

F. Case Load ......................................................................................................................... 3

II. HISTORY OF THE COURT ........................................................................................... 3

A. Pre-Civil War .............................................................................................................. 3

B. Civil War Reforms ...................................................................................................... 4

C. Agencies Respond....................................................................................................... 4

D. The Supreme Court Weighs In........................................................................................ 5

E. Congress Reacts .......................................................................................................... 5

F. The Supreme Court Weighs In Again. ........................................................................ 5

G. The Contract Disputes Act (CDA) of 1978. ............................................................... 5

H. Federal Courts Improvement Act of 1982. ................................................................. 6

I. Federal Courts Administration Act of 1992 ................................................................ 6

J. The Federal Acquisition Streamlining Act of 1994 (“FASA”) ................................... 7

K. The Administrative Dispute Resolution Act of 1996 (“ADRA”) ............................... 7

1 This document was prepared by Doug Mickle and the information set forth in this outline is the view of Doug

Mickle, and has not been endorsed by the Department of Justice. It is current as of 19 August 2013

III. PRACTICAL EFFECTS ON LITIGATION ................................................................. 8

A. The Judge .................................................................................................................... 8

B. The Plaintiff ................................................................................................................ 8

C. The Defendant ............................................................................................................ 8

D. Practical Effect Upon Agency Once Case If Filed...................................................... 8

E. Applicable Law ................................................................................................................ 9

F. Electronic docket ...................................................................................................... 10

IV. COFC JURISDICTIONAL ISSUES. ............................................................................ 10

A. Waiver of Sovereign Immunity ................................................................................ 10

B. Tucker Act - General ................................................................................................ 10

C. Tucker Act – Claims Founded Upon Contract .......................................................... 11

D. Claims Founded Upon Statute Or Regulation. .......................................................... 12

E. Claims for Money Unlawfully Exacted Or Retained ................................................ 12

F. Constitutional Provisions and Statutes That Do Not Waive Sovereign Immunity .. 12

V. INITATING SUIT ........................................................................................................... 13

A. Action Commenced With A Complaint. ................................................................... 13

B. Statute of Limitations................................................................................................ 13

C. The “Call Letter.” ..................................................................................................... 14

VI. RESPONDING TO THE COMPLAINT ...................................................................... 14

A. The Answer ............................................................................................................... 14

B. Defenses .................................................................................................................... 15

C. Counterclaims ........................................................................................................... 16

D. Signing Pleadings, Motions, and Other Papers ......................................................... 16

E. Early Meeting of Counsel ......................................................................................... 17

F. Joint Preliminary Status Report (JPSR) .................................................................... 17

VII. BASIS FOR RESPONSE - THE LITIGATION REPORT. ........................................ 18

A. 28 U.S.C. § 520(b) .................................................................................................... 18

B. Army Regulation 27-40 ............................................................................................ 19

VIII. DISCOVERY. .................................................................................................................. 20

A. Discovery scope. ....................................................................................................... 20

B. Methods of Discovery .............................................................................................. 21

C. Protective Orders ...................................................................................................... 21

D. Depositions ............................................................................................................... 21

E. Interrogatories ........................................................................................................... 23

F. Requests for the Production of Documents .............................................................. 23

G. Requests for Admission. ........................................................................................... 24

H. Agency Counsel Role in Responding to Interrogatories, Requests for Production

and Admissions ......................................................................................................... 24

I. Discovery Planning Conference ............................................................................... 25

J. Failure to Cooperate in Discovery ............................................................................ 25

IX. TRIAL .............................................................................................................................. 27

A. Meeting of counsel.................................................................................................... 27

B. Pre-Trial Preparation ................................................................................................. 28

C. Offers of Judgment ................................................................................................... 28

X. SETTLEMENT. .............................................................................................................. 28

XII. POST JUDGMENT ........................................................................................................ 31

A. Final Judgment Rule ................................................................................................. 31

B. New Trials ................................................................................................................ 31

C. Appeals ..................................................................................................................... 31

D. Paying plaintiff attorney fees .................................................................................... 32

E. Payment of Judgments .............................................................................................. 32

XIII. BID PROTESTS AT THE COURT OF FEDERAL CLAIMS ................................... 32

A. COFC jurisdiction ..................................................................................................... 32

B. Standard of Review ................................................................................................... 34

C. Standard for injunctive relief .................................................................................... 37

D. The Administrative Record ....................................................................................... 38

E. What to Expect After Protest Is Filed ....................................................................... 42

XIV. THE CONTRACT DISPUTES ACT OF 1978. 41 U.S.C. §§ 7101-7109. .................. 44

A. Applicability ............................................................................................................. 44

B. Jurisdictional prerequisites ........................................................................................ 45

C. Statute of Limitations................................................................................................ 46

D. Consolidation of Suits ............................................................................................... 47

E. Relationship Between COFC and the Boards ........................................................... 47

XV. CONCLUSION. ............................................................................................................... 48

CONTRACT DISPUTES ACT AND BID PROTEST

LITIGATION AT THE COURT OF FEDERAL CLAIMS (“COFC”)

I. INTRODUCTION.

A. Court of national jurisdiction, established in 1855 to handle certain types of

claims against the United States.

B. Jurisdiction – Suits primarily for money, arising out of money-mandating statutes,

Constitutional provisions, Executive orders, Executive agency regulations, and

contracts.

1. 42% - Government contracts.

2. 16% - Civilian and military pay.

3. 13% - tax refunds (concurrent jurisdiction with United States district

courts).

4. 9% - Fifth Amendment takings, including environmental and natural

resource issues.

5. 20% - Miscellaneous.

a. Various claims pursuant to statutory loan guarantee or benefit

programs, including those brought by states and localities, and

foreign governments.

b. Congressional reference cases. 28 U.S.C. § 1492.

c. Intellectual property claims against the United States (and its

contractors). 28 U.S.C. § 1498.

d. Indian Tribe claims. 28 U.S.C. § 1505.

6. Vaccine compensation claims. 42 U.S.C. § 300aa-12.

C. Limitation on Remedies

1. Generally, money damages.

LAST UPDATED: 15 June 2011

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2. Pursuant to the Tucker Act, the Court may provide limited forms of

equitable relief, including:

a. Reformation in aid of a monetary judgment, or rescission instead

of monetary damages. John C. Grimberg Co. v. United States,

702 F.2d 1362 (Fed. Cir. 1983); Paragon Energy Corp. v. United

States, 645 F.2d 966 (Ct. Cl. 1981); Rash v. United States,

360 F.2d 940 (1966).

b. “[T]o grant declaratory judgments and such equitable and

extraordinary relief as it deems proper, including but not limited to

injunctive relief” in bid protest cases. 28 U.S.C. § 1491(a)(3).

c. Records correction incident to a monetary award, such as

correcting military records to reflect a Court finding of unlawful

separation. See 28 U.S.C. § 1491(a)(2).

d. Pursuant to the Contract Disputes Act (“CDA”), the COFC also

may entertain certain nonmonetary disputes.

3. The Court may award Equal Access to Justice Act (“EAJA”) attorney fees.

28 U.S.C. § 2412.

D. Composition. 28 U.S.C. §§ 171-172.

1. Composed of 16 judges (and now has 10 more in senior status).

2. Chief Judge is Emily C. Hewitt.

3. President appoints judges for 15-year term with advice and consent of the

Senate. President may reappoint after initial term expires.

4. The Court of Appeals for the Federal Circuit (“CAFC”) may remove a

judge for incompetence, misconduct, neglect of duty, engaging in the

practice of law, or physical or mental disability.

E. Location.

1. 717 Madison Place, N.W., Washington, D.C. (across from White House

and Treasury).

2. Routinely schedules trials throughout the country, 28 U.S.C. §§ 173

(“times and places of the sessions of the [COFC] shall be prescribed with

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a view to securing reasonable opportunity to citizens to appear with as

little inconvenience and expense to citizens as is practicable”), 2503(c),

and 2505 (“[h]earings shall, if convenient, be held in the counties where

the witnesses reside”). The Court also conducts telephonic hearings,

motions, and status conferences.

3. Unlike the boards for contract appeals (“BCAs”), however, prior to 1992,

the COFC could not conduct trials in foreign countries. 28 U.S.C. § 2505;

In re United States, 877 F.2d 1568 (Fed. Cir. 1989). The Federal Courts

Administration Act (“FCAA”) of 1992 remedied this. See 28 U.S.C.

§798(b).

F. Case Load.

1. FY 2010, the COFC disposed of 713 complaints (including Congressional

Reference) and 504 vaccine petitions. The total amount claimed was

$73,287,071,000.00. Of the cases disposed of, the Court rendered

judgments for claimants in the sum of $902,963,141.45 of which

$45,495,336.39 carried interest. The COFC rendered judgments for the

United States on counterclaims or offsets in the amount of $1,275,876.73.

The Court had 89 bid protests.

2. FY 2008, the COFC disposed of 872 complaints (including Congressional

Reference) and 294 vaccine petitions. The total amount claimed was

$10,108,961,000.00. Of the cases disposed of, the Court rendered

judgments for claimants in the sum of $1,287,014,725.40 of which

$31,835,607.84 carried interest. The Court had 92 bid protests.

3. In FY 2006, the Court rendered judgments in more than 900 cases and

awarded $1.9 billion in damages.

4. In FY 2003, the Court disposed of 732 complaints, including 45 bid

protests, and awarded judgments totaling $ 878 million on claims totaling

$ 40 billion against the Government.

5. Web site (includes judges’ bios): http://www.uscfc.uscourts.gov//

II. HISTORY OF THE COURT.

A. Pre-Civil War.

1. Before 1855, Government contractors had no forum in which to sue the

United States.

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2. In 1855, the Congress created the Court of Claims as an Article I

(legislative) court to consider claims against the United States and

recommend private bills to Congress. Act of February 24, 1855, 10 Stat.

612.

3. However, the service secretaries continued to resolve most contract

claims. As early as 1861, the Secretary of War appointed a board of three

officers to consider and decide specific contract claims. See Adams v.

United States, 74 U.S. 463 (1868). Upon receipt of an adverse board

decision, a contractor’s only recourse was to request a private bill from

Congress.

B. Civil War Reforms.

1. In 1863, Congress expanded the power of the Court of Claims by

authorizing it to enter judgments against the United States. Act of March

3, 1863, 12 Stat. 765.

2. In 1887, Congress passed the Tucker Act to expand and clarify the Court’s

jurisdiction. Act of March 3, 1887, 24 Stat. 505 (codified at 28 U.S.C. §

1491).

a. The court has jurisdiction “to render judgment upon any claim

against the United States founded either upon the Constitution, or

any Act of Congress or any regulation of an executive department,

or upon any express or implied contract with the United States, or

for liquidated or unliquidated damages in cases not sounding in

tort.” 28 U.S.C. § 1491(a)(1). For the first time, a Government

contractor could sue the United States as a matter of right.

b. Note: district courts have concurrent jurisdiction with COFC to

the extent such claims do not exceed $10,000. 28 U.S.C.

§ 1346(a)(2) (Little Tucker Act).

C. Agencies Respond.

1. Agencies responded to the Court of Claim’s increased oversight by adding

clauses to Government contracts that appointed specific agency officials

(e.g., the contracting officer or the service secretary) as the final decision-

maker for questions of fact.

2. The Supreme Court upheld the finality of these officials’ decisions in

Kihlberg v. United States, 97 U.S. 398 (1878).

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3. The tension between the agencies’ desire to decide contract disputes

without outside interference and the contractors’ desire to resolve disputes

in the Court of Claims continued until 1978.

4. This tension resulted in considerable litigation and a substantial body of

case law.

D. The Supreme Court Weighs In.

1. In a series of cases culminating in Wunderlich v. United States, 342 U.S.

98 (1951), the Supreme Court upheld the finality (absent fraud) of factual

and legal decisions issued under disputes clauses by agency boards of

contract appeals.

2. The Supreme Court further held that the Court of Claims could not review

board decisions de novo.

E. Congress Reacts.

1. In 1954, Congress passed the Wunderlich Act, 41 U.S.C. §§ 321-322, to

reaffirm the Court of Claims’ authority to review factual and legal

decisions by agency boards of contract appeals.

2. At about the same time, Congress changed the Court of Claims from an

Article I (legislative) court to an Article III (judicial) court. Pub. L. No.

83-158, 67 Stat. 226 (1953).

F. The Supreme Court Weighs In Again.

1. In United States v. Carlo Bianchi & Co, 373 U.S. 709 (1963), the Supreme

Court held that boards of contract appeals were the sole forum for

considering de novo disputes “arising under” a remedy granting clause in

the contract.

2. Three years later, the Supreme Court reaffirmed its conclusion in Utah

Mining and Constr. Co. v. United States, 384 U.S. 394 (1966).

3. As a result, agency boards of contract appeals began to play a more

significant role in the resolution of contract disputes.

G. The Contract Disputes Act (CDA) of 1978.

1. Pub. L. No. 95-563, 92 Stat. 2383 (codified as amended at 41 U.S.C. §§

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601-613).

2. In 1978, Congress passed the CDA to make the claims and disputes

process more consistent and efficient.

3. The CDA replaced the previous disputes resolution system with a

comprehensive statutory scheme.

H. Federal Courts Improvement Act of 1982.

1. Pub. L. No. 97-164, 96 Stat. 25 (codified 28 U.S.C. §§ 171 et seq., 1494-

97, 1499-1503).

2. In 1982, Congress overhauled the Court of Claims and created a new

Article I (legislative) court -- named the United States Claims Court --

from the old Trial Division of the Court of Claims. Congress then merged

the old Appellate Division of the Court of Claims with the Court of

Customs and Patent Appeals to create the Court of Appeals for the Federal

Circuit (“CAFC”).

I. Federal Courts Administration Act of 1992

1. Pub. L. No. 102-572, 106 Stat. 4506. For legislative history, see, inter alia,

S. Rep. No. 102-342, 102d Cong., 2d Sess. (July 27, 1992); H. Rep. No.

102-1006 (October 3, 1992); Senator Heflin’s remarks, Volume 138 Cong.

Rec. No. 144, at S17798-99 (October 8, 1992).

2. In 1992, Congress changed the name of the Claims Court to the United

States Court of Federal Claims (“COFC”).

3. Congress expanded the jurisdiction of the COFC to include the

adjudication of nonmonetary disputes.

a. The COFC has jurisdiction “to render judgment upon any claim by

or against, or dispute with, a contractor arising under

section 10(a)(1) of the Contract Disputes Act of 1978, including a

dispute concerning termination of a contract, rights in tangible or

intangible property, compliance with cost accounting standards,

and other nonmonetary disputes on which a decision of the

contracting officer has been issued under section 6 of that Act.”

Federal Courts Administration Act of 1992, Pub. L. No. 102-572,

106 Stat. 4506 (codified at 28 U.S.C. § 1491(a)(2)).

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J. The Federal Acquisition Streamlining Act of 1994 (“FASA”)

1. Pub. L. No.103-355, 108 Stat. 3243 (1994), slightly altered the Court’s

jurisdiction.

2. The COFC may direct that the contracting officer render a decision

formerly, only the boards of contract appeals (BCAs) could. FASA

§ 2351(e), amending 41 U.S.C. § 605(c)(4).

3. District courts may request advisory opinions from BCAs. On matters

concerning contract interpretation (any issue that could be the proper

subject of a contracting officer’s final decision), district courts may

request that the appropriate agency BCA provide (in a timely manner) an

advisory opinion. FASA § 2354, amending 41 U.S.C. § 609. NB: FASA

does not permit Federal district courts to request an advisory opinion from

the COFC.)

K. The Administrative Dispute Resolution Act of 1996 (“ADRA”)

1. Pub. L. No. 104-320, § 12 (1996), significantly altered COFC and U.S.

District Court “bid protest jurisdiction.” See 28 U.S.C. § 1491(b).

2. Jurisdiction extends to actions “in connection with a procurement or

proposed procurement.” Extends beyond “bid protests,” e.g., GAO

override decisions.

3. Statutorily-Prescribed Standing Requirement(“interested party”).

a. “Interested party” has same meaning as in CICA (actual or

prospective bidder whose direct economic interest would be

affected by an award). AFGE, AFL-CIO v. United States, 258

F.3d 1294 (2001). (NB: narrower than APA definition.)

b. This means protester must submit a bid/proposal, Impresa

Construcioni Geom. Domenico Garufi v. United States, 238 F.3d

1324, 1334 (Fed. Cir. 2001); not be a bidder ranked below second

in an agency's evaluation, United States v. IBM Corp., 892 F.2d

1006 (Fed. Cir. 1989); and be responsive. Ryan Co. v. United

States, 43 Fed. Cl. 646 (1999) (citing IBM), and MCI Telecom.

Corp. v. United States, 878 F.2d 362 (Fed. Cir. 1989)).

4. Empowered the Court to grant declaratory and injunctive relief to fashion

a remedy. Monetary relief, however, is limited to bid preparation and

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proposal costs.

5. Granted same jurisdiction to district courts until January 1, 2001, unless

jurisdiction was renewed. It was not.

6. APA standard of review, 5 U.S.C. § 706.

III. PRACTICAL EFFECTS ON LITIGATION.

A. The Judge.

1. 28 U.S.C. § 173.

2. One judge presides and decides - NO JURY TRIALS. RCFC 38 & 39.

B. The Plaintiff.

1. RCFC 17.

2. Individuals may represent themselves or members of their immediate

family. Any other party must be represented by an attorney who is admitted to

practice in the COFC. RCFC 83.1(a)(3).

3. Note: at ASBCA atty. not required.

C. The Defendant = “The United States.”

1. Counsel = Department of Justice (“DOJ”). 28 U.S.C. §§ 516, 518-519.

The DOJ has plenary authority to settle cases pending in the COFC. See

28 U.S.C. § 516; see also Executive Business Media v. Dept. of Defense,

3 F.3d 759 (4th Cir. 1993).

2. The National Courts Section of the Civil Division’s Commercial

Litigation Branch, located in Washington, D.C., represents the

Government in all contract actions.

D. Practical Effect Upon Agency Once Case If Filed.

1. The agency loses authority over the case’s disposition.

2. The contracting officer loses authority to decide or settle claims arising

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out of the same operative facts. The Sharman Co., Inc. v. United States, 2

F.3d 1564 (1993).

3. The agency counsel, because there is only one “attorney of record” per

party, appears “of counsel,” and plays a different role than s/he would at

the board or even a district court, where SAUSA appointments are

commonplace.

4. Effect of “United States” as defendant. Who is DOJ’s client?

E. Applicable Law.

1. Statutes and Federal common law, unless matter controlled by state law,

e.g., property rights.

2. Stare Decisis.

a. Supreme Court.

b. United States Court of Appeals for the Federal Circuit.

c. United States Court of Claims. South Corp. v. United States, 690

F.2d 1368 (Fed. Cir. 1982) (en banc).

d. Judges not bound by the decisions of the other COFC judges.

e. Unpublished decisions may be cited.

3. Procedural Rules

a. The Rules of the Court of Federal Claims (“RCFC”), which are

based upon the Federal Rules of Civil Procedure, are published as

an appendix to Title 28 of the United States Code.

b. Special Orders – The old version of RCFC 1 permitted the judges

to “regulate the applicable practice in any manner not inconsistent

with these rules.” Thus, most judges adopted specialized

procedural orders, regulating enlargements of time, dispositive

motions in lieu of answers, other dispositive motion requirements,

mandatory disclosure, joint preliminary status reports, preliminary

status conferences, discovery, experts, and submissions. Although

the new rules do not specifically address this practice, many judges

still issue special orders.

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F. Electronic docket.

1. Public Access to Court Electronic Records (“PACER”) is an electronic

public access service that allows users to obtain case and docket

information from Federal Appellate, District and Bankruptcy courts, and

the U.S. Party/Case Index via the Internet.

2. CM/ECF stands for Case Management / Electronic Case Files. It is a joint

project of the Administrative Office of the U.S. Courts and the Federal

courts to replace existing case management systems with a new system

based on current technology, new software and increased functionality.

This new system allows us to offer web access to the Court’s docket 24

hours a day, 7 days a week and to allow electronic document filing in

designated cases.

3. Electronic docket basically mandates that the agency have scanning

capabilities.

IV. COFC JURISDICTIONAL ISSUES.

A. Waiver of Sovereign Immunity.

Tucker Act waives sovereign immunity, but the “substantive right” claimed,

whether it be the Constitution, an Act of Congress, a mandatory provision of

regulatory law, or a contract, must be one which “can fairly be interpreted as

mandating compensation by the Federal Government for the damages sustained.”

Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-1009, 178 Ct. Cl. 599,

605-607 (1967).

B. Tucker Act - General.

1. Must be brought within six years of date claim arose. 28 U.S.C. § 2501;

Soriano v. United States, 352 U.S. 270, 273 (1956); Hopland Band of

Pomo Indians v. United States, 855 F.2d 1573 (Fed. Cir. 1988). This is

jurisdictional.

2. Equitable tolling: Irwin v. Veterans Admin., 498 U.S. 89 (1990)

(rebuttable presumption that equitable tolling may be applied against the

United States in the same manner as against private parties); Bailey v.

West, 160 F.3d 1360 (Fed. Cir. 1998). But see, John R. Sand & Gravel

Co. v. United States, 552 U.S. 130 (2008) (holding that 28 U.S.C. § 2501

is jurisdictional and thus equitable tolling and estoppel do not extend the

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six-year statute of limitations embedded in 28 U.S.C. § 2501).

3. NAFIs:

(1) OLD RULE: Generally must involve an appropriated fund

activity. AINS, Inc. v. United States, 365 F.3d 1333 (Fed.

Cir.2004); Furash & Company v. United States, 252 F.3d

1336 (Fed. Cir. 2001); El-Sheikh v. United States, 177 F.3d

1321 (Fed. Cir. 1999)(finding that Tucker Act jurisdiction

over NAFIs is limited to claims based upon a contract, but

holding that jurisdiction may be supplied through another

statute waiving sovereign immunity, such as the FLSA).

(2) NEW RULE: Federal Circuit just held, en banc, that

Tucker Act jurisdiction encompasses NAFs. See Slattery v.

United States, 635 F.3d 1298 (2011).

4. Money claimed must be presently due and payable. United States v. King,

395 U.S. 1, 3 (1969).

5. May not also be pending in any other court. 28 U.S.C. § 1500; Loveladies

Harbor v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (en banc); United

States v. Tohono O'Odham Nation, U.S. , 131 S.Ct. 1723, 1731

(2011) (“Two suits are for or in respect to the same claim, precluding

jurisdiction in the CFC, if they are based on substantially the same

operative facts, regardless of the relief sought in each suit.”); Note order of

filing rule still in effect.

6. May not grow out of or be dependent upon a treaty. 28 U.S.C. § 1502.

7. May not be brought by a subject of a foreign government unless the

foreign government accords to citizens of the United States the right to

prosecute claims against that government in its courts. 28 U.S.C. § 2502;

Zalcmanis v. United States, 146 Ct. Cl. 254 (1959).

C. Tucker Act - Claims Founded Upon Contract.

1. Must demonstrate elements necessary to establish the existence of a

contract (e.g., meeting of minds, consideration). E.g., Somali Dev. Bank

v. United States, 205 Ct. Cl. at 751, 508 F.2d at 822; Algonac Mfg. Co. v.

United States, 192 Ct. Cl. 649, 673-74, 428 F.2d 1241, 1255 (1970); ATL,

Inc. v. United States, 4 Cl. Ct. 672, 675 (1984), aff'd, 735 F.2d 1343 (Fed.

Cir. 1984).

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2. Must demonstrate that it was entered into by authorized Government

official. E.g., City of El Centro v. United States, 922 F.2d 816 (Fed. Cir.

1990).

3. Must demonstrate “privity of contract.” Erickson Air Crane Co. v. United

States, 731 F.2d 810, 813 (Fed. Cir. 1984); United States v. Johnson

Controls, Inc., 713 F.2d 1541, 1557 (Fed. Cir. 1983); see Cienega

Gardens, et al. v. United States, 162 F.3d 1123, 1129-30 (Fed. Cir. 1998).

4. If “implied,” must be implied-in-fact, not implied- in-law. Merritt v.

United States, 267 U.S. 338, 341 (1925); Tree Farm Dev. Corp. v. United

States, 218 Ct. Cl. 308, 316, 585 F.2d 493, 498 (1978); Algonac

Manufacturing Co. v. United States, 192 Ct. Cl. 649, 674, 428 F.2d 1241,

1256 (1970).

5. Cannot be for the performance of covert or secret services; not all

“agreements” within Congress' contemplation of contract claims under

Tucker Act. Totten v. United States, 92 U.S. 105 (1875); Guong v. United

States, 860 F.2d 1063 (Fed. Cir. 1988).

6. “Grants” which create formal obligations have been found sufficient for

jurisdiction even though they do not appear to satisfy all elements

necessary for a contract; however, Government bound only by its express

undertakings. Missouri Health & Med. Organization v. United States, 226

Ct. Cl. 274 (1981); Thermalon Indust., Ltd. v. United States, 34 Fed. Cl.

411 (1995).

D. Claims Founded Upon Statute Or Regulation.

1. Civilian personnel pay claims: e.g., Equal Pay Act, 5 U.S.C. § 5101;

Federal Employment Pay Act, 5 U.S.C. § 5542 et seq.; Fair Labor

Standards Act, 29 U.S.C. §§ 201-219.

2. Military personnel pay claims: A service member’s status in the armed

forces is defined by the statutes and regulations which form the member's

right to statutory pay and allowances. Bell v. United States, 366 U.S. 393

(1961).

E. Claims for Money Unlawfully Exacted Or Retained. Jurisdiction to entertain

claim for return of money paid by claimant under protest upon grounds illegally

exacted or retained. Aerolineas Argentinas v. United States, 77 F.3d 1564 (Fed.

Cir. 1996).

F. Constitutional Provisions and Statutes That Do Not Waive Sovereign Immunity

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1. 1st, 4th, and 5th Amendments (except Takings Clause).

2. Administrative Procedure Act. Califano v. Sanders, 430 U.S. 99, 107

(1977)

3. Declaratory Judgment Act (28 U.S.C. § 2201). United States v. King, 395

U.S. 1, 5 (1969).

V. INITATING SUIT

A. Action Commenced With A Complaint.

1. A “short and plain” statement showing jurisdiction and entitlement to

relief, and demanding judgment for the relief sought. RCFC 8(a).

2. In addition, the complaint must contain:

(1) A statement regarding any action taken on the claim by

Congress, a department or agency of the United States, or

another tribunal, RCFC 9(o);

(2) A citation to any statute, regulation, or Executive order

upon which the claim is founded, RCFC 9(j); and

(3) Identification of any contract on which the claim is

founded, as well as a description or attached copy of the

contract. RCFC 9(k).

3. Compare: At BCAs, action commenced with notice of appeal.

B. Statute of Limitations.

1. Contract claims. Generally, six years. 28 U.S.C. § 2501.

2. The COFC generally considers the Clerk of Court’s record of receipt to be

final and conclusive evidence of the date of filing. But the Court will

deem a late complaint timely if the plaintiff:

(1) Sent the complaint to the proper address by registered or

certified mail, return receipt requested;

(2) Deposited the complaint in the mail far enough in advance

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of the due date to allow delivery by the due date in the

ordinary course of the mail; and

(3) Exercised no control over the complaint from the date of

mailing to the date of delivery. See B.D. Click Co. v.

United States, 1 Cl. Ct. 239 (1982) (holding that the

contractor failed to demonstrate the applicability of

exceptions to timeliness rules).

C. The “Call Letter.”

1. 28 U.S.C. § 520.

2. The Attorney General must send a copy of the complaint to the

responsible military department, along with a request for all of the facts,

circumstances, and evidence concerning the claim that are within the

military department’s possession or knowledge.

3. The responsible military department must then provide the Attorney

General with a “written statement of all facts, information, and proofs.”

4. “Do not destroy” reminder.

5. Don’t wait for the call letter before contacting us. DOJ is usually the last

to know when a complaint is filed.

VI. RESPONDING TO THE COMPLAINT.

A. The Answer.

1. RCFC 8, 12, and 13.

2. The Government must either respond with a motion under RCFC 12

or file its answer within 60 days of the date it receives the complaint.

3. If the Government submits an answer, the Government must admit or

deny each averment in the complaint.

4. If the Government lacks sufficient knowledge or information to admit

or deny a particular averment, the Government must say so.

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5. If the Government only intends to oppose part of an averment, the

Government must specify which part of the averment is true and deny the

rest.

6. Generally, DOJ files bare bones admissions and denials. Compare with

ASBCA practice. However, each such statement must be supportable.

See discussion of Rule 11, below.

B. Defenses.

1. RCFC Nos. 8 and 12.

2. If an answer is required, the Government must plead every factual and

legal defense to a claim for relief.

3. Where appropriate, the Government asserts the following defenses by

motion:

(1) Lack of subject-matter jurisdiction;

(2) Lack of personal jurisdiction;

(3) Insufficiency of process; and

(4) Failure to state a claim upon which the Court may grant

relief.

4. If an answer is required, the Government must plead the following

affirmative defenses:

(1) “accord and satisfaction,

(2) arbitration and award,

(3) discharge in bankruptcy,

(4) duress,

(5) estoppel,

(6) failure of consideration,

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(7) fraud, illegality,

(8) laches,

(9) license,

(10) payment,

(11) release,

(12) res judicata,

(13) statute of frauds,

(14) statute of limitations,

(15) waiver, and

(16) any other matter constituting an avoidance or affirmative

defense.” RCFC 8(c).

C. Counterclaims.

1. RCFC 13.

2. To preserve its right to judicial enforcement of a claim, the Government must

state any claim it has against the plaintiff as a counterclaim if:

a. The claim arises out of the same transaction or occurrence as the

plaintiff’s claim; and

b. The claim does not require the presence of third parties for its

adjudication.

3. The Government may state any claims not arising out of the same transaction or

occurrence as the plaintiff’s claim as counterclaims.

D. Signing Pleadings, Motions, and Other Papers.

1. RCFC 11.

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2. The attorney of record must sign every pleading, motion, and other paper. The

attorney’s signature constitutes a certification that the attorney has read the

pleading, motion, or other paper; that to the best of the attorney’s knowledge,

information, and belief formed after reasonably inquiry it is well grounded in fact

and is warranted by existing law or a good faith argument for the extension,

modification, or reversal of existing law; and that it is not interposed for any

improper purpose, such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation.

3. The COFC will strike a pleading, motion, or other paper if the attorney does not

promptly sign it after the omission of the attorney’s signature is brought to the

attorney’s attention.

4. The COFC will impose appropriate sanctions against the attorney and/or the

represented party if the attorney signs a pleading, motion, or other paper in

violation of this rule.

E. Early Meeting of Counsel.

1. RCFC, App. A, Pt. II.

2. The parties must meet after the Government files its answer to:

a. Identify each party’s factual and legal contentions;

b. Discuss each party’s discovery needs and discovery

schedule; and

c. Discuss settlement.

d. As a practical matter, DOJ orchestrates this.

F. Joint Preliminary Status Report (JPSR).

1. RCFC, App. A, Pt. III.

2. The parties must file a JPSR no later than 49 days after the Government

answers or plaintiff files its reply to a Government counter-claim.

3. The JPSR must set forth answers to the following questions:

(1) Does the Court have jurisdiction?

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(2) Should the case be consolidated with any other action?

(3) Should trial of liability and damages be bifurcated?

(4) Should further proceedings be deferred pending

consideration of another case? Consider 28 U.S.C. § 1500; UNR

Indus., Inc. v. United States, 962 F.2d 1013 (1992), cert. granted,

113 S. Ct. 373(1992); Keene Corn. v. United States, 113 S. Ct.

2035 (1993). Subsequent interpretations of 28 U.S.C. § 1500

include: Wilson v. United States, 32 Fed. Cl. 794 (1995) (same

recovery in both actions); McDermott. Inc. v. United States, 30

Fed. Cl. 332 (1994) (constitutional claims and challenges to

Federal statutes pending in a district court action not the same as

the contract actions before the COFC); Marshall Assoc.

Contractors Inc. v. United States, 31 Fed. Cl. 809 (1994) (surety’s

suit against the United States pending in another Federal court not

a jurisdictional bar to contractor’s suit before the COFC).

(5) Will a remand or suspension be sought?

(6) Will additional parties be joined?

(7) Does either party intend to file a motion to dismiss for lack

of jurisdiction, failure to state a claim, or summary

judgment? If so, a schedule.

(8) What are the relevant issues?

(9) What is likelihood of settlement?

(10) Do the parties anticipate proceeding to trial? If so, does

any party want to request expedited trial scheduling?

(11) Is there any other information of which the court should be

made aware?

(12) What do the parties propose for a discovery plan and

deadlines?

VII. BASIS FOR RESPONSE - THE LITIGATION REPORT.

A. The agency is required, by statute, to file a litigation report. 28 U.S.C. § 520(b).

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B. Army Regulation 27-40, paragraph 3-9 requires the SJA or legal advisor to

prepare the litigation report when directed by Litigation Division. Not a Rule 4

File. Neither the CFC nor the plaintiff sees the report. Err on the side of

inclusion, not exclusion. Stamp “Attorney Work Product.”

C. AR 27-40, “Litigation.” Chapter 3.9, “Litigation Reports.”

1. Statement of Facts. A complete statement of the facts on which the action

and any possible Government defenses are based. Where possible, support

facts by reference to documents or witness statements. Include details of

previous administrative actions, such as the filing and results of an

administrative claim.

2. Setoff or Counterclaim. Identify with supporting facts.

3. Responses to Pleadings. Prepare a draft answer or other appropriate

response to the pleadings. (See fig 3-1, Sample Answer). Discuss whether

allegations of fact are well-founded. Refer to evidence that refutes factual

allegations.

4. Memorandum of Law.

(1) “Include a brief statement of the applicable law with

citations to legal authority. Discussions of local law, if

applicable, should cover relevant issues such as measure of

damages . . . . Do not unduly delay submission of a

litigation report to prepare a comprehensive memorandum

of law.”

(2) Identify jurisdictional defects and affirmative defenses.

(3) Assess litigation risk. Do not hesitate to form (and support)

a legal opinion. Give a candid assessment of the potential

for settlement.

5. Potential witness information. List each person having information

relevant to the case and provide an office address and telephone number.

If there is no objection, provide the individual's social security account

number, home address, and telephone number. This is “core information”

required by Executive Order No. 12778 (Civil Justice Reform). Finally,

summarize the information or potential testimony that each person listed

could provide.” NB: DOJ usually does not require SSNs, but it really

needs to know witnesses’ expected availability (retiring? PCS’ing to

Greenland?).

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6. Exhibits – “Attach a copy of all relevant documents . . . . Copies of

relevant reports of claims officers, investigating officers, boards, or similar

data should be attached, although such reports will not obviate the

requirement for preparation of a complete litigation report . . . Where a

relevant document has been released pursuant to a Freedom of Information

Act (FOIA) request, provide a copy of the response, or otherwise identify

the requestor and the records released.

7. Draft an answer.

8. Identify documents and information targets for discovery. Think about

things you know exist or must exist that will help the agency position as

well as things that might exist that might undermine the agency’s position.

9. Consider drafting a motion to dismiss for lack of jurisdiction, RCFC

12(b)(1), or for failure to state a claim, RCFC 12(b)(6).

10. Consider drafting motion for summary judgment, RCFC 56. NB: RCFC

56(d) requires that the moving party file a separate document entitled

Proposed Findings of Uncontroverted Fact, and that the responding party

file a “Statement of Genuine Issues,” and permits the responding party to

file proposed findings of uncontroverted facts.

11. Analyze the Client.

12. If the plaintiff’s position is unbelievable, there is some chance the agency

has simply misunderstood it (perhaps because the position was poorly

presented). Identify the questions that will assure the Government

understands the contractor’s point so we can target discovery, properly

respond, and be assured the Government will not be blind-sided at trial.

13. Identify any agency concerns, uncertainty, hard or soft spots (the

contracting officer will fight to the death vs. the contracting officer was

surprised the contractor never called to negotiate), witness problems or

biases, and anything else you would like to know if you were trying the

case.

VIII. DISCOVERY.

A. Discovery scope.

RCFC 26, Appendix A, Pt. V, ¶¶ 9-10.

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B. Methods of Discovery.

1. RCFC 26(a).

2. The parties may obtain discovery by depositions upon oral examination or

written questions, written interrogatories, requests for the production of

documents, and requests for admission.

3. The Court may limit discovery if:

(1) The discovery sought is unreasonably cumulative or

duplicative;

(2) The party seeking the discovery may obtain it from a more

convenient, less burdensome, or less expensive source;

(3) The party seeking the discovery has had ample opportunity

to obtain the information sought; or

(4) The burden or expense of the proposed discovery

outweighs its likely benefit.

(5) Remember, defendant is the United States – thus discovery

requests could include more than one Federal agency.

C. Protective Orders.

(1) RCFC 26(c) and Form 8.

(2) The court may make “any order which justice requires to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.”

D. Depositions.

1. RCFC 30.

2. Purpose –

(1) Lock in testimony, pure exploration, testing a

theory/confirming a negative.

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(2) Need relevant documents to refresh witness's testimony and

keep questioning specific.

3. Subpoenas may be served at any place within 100 miles of deposition,

hearing or trial. Upon a showing of good cause, a subpoena may be

served at any other place. RCFC 45(b)(2).

4. Expenses. RCFC 30(g).

(1) The party taking the deposition must pay the cost of

recording the deposition.

(2) Tell DOJ what you will need: disk; condensed (with word

index); full. Making copies may or may not be permitted.

5. Defending Subpoenas.

(1) Agency counsel should coordinate service.

(2) If the party that gave notice of the deposition failed to

attend (or failed to subpoena a witness who failed to

attend), the court may order that party to pay the other

party’s reasonable expenses, including reasonable

attorney’s fees.

(3) DOJ should take lead in preparing witnesses, including

how much and how to prepare.

(4) Agency may be asked to identify relevant documents and

likely questions.

(5) All contact with witness must be coordinated with DOJ.

6. Submission of Transcript to Witness.

(1) RCFC 30(e).

(2) The deponent must examine and read the transcript unless

the witness and the parties waive the requirement.

(3) The deponent may make changes; however, the deponent

must sign a statement that details the deponent’s reasons

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for making them.

(4) Agency counsel should coordinate this for agency

witnesses.

E. Interrogatories.

1. RCFC 33.

2. The Government may serve interrogatories on the plaintiff after the

plaintiff files the complaint, and the plaintiff may serve interrogatories on

the Government after the Government receives the complaint.

3. The party upon whom the interrogatories have been served (i.e., the

answering party) must normally answer or object to the interrogatories

within 30 days of service.

4. The answering party may answer an interrogatory by producing business

records if:

(1) The business records contain the information sought; and

(2) The burden of deriving or ascertaining the answer sought is

substantially the same for both parties.

(3) The responding party must be specific about where the

information can be located. Otherwise, the burden is not

the same.

5. The answering party must sign a verification attesting to the truth of the

answers. The answering party’s attorney must sign the objections.

F. Requests for the Production of Documents.

1. RCFC 34.

2. The rules are similar to the rules for interrogatories.

3. The party producing the records for inspection/copying may either:

(1) Produce them as they are kept in the usual course of

business; or

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(2) Organize and label them to correspond to the production

request.

4. Exercise caution in privilege review: once they've got it, assume we can't

take it back. Prepare a draft privilege list of documents withheld,

providing sufficient detail to assure recipient can analyze applicability of

privilege (usually, to, from, subject, and identify of sender/recipient's

office (e.g., “Counsel”).

G. Requests for Admission.

1. RCFC 36.

2. The answering party must:

(1) Specifically deny each matter; or

(2) State why the answering party cannot truthfully admit or

deny the matter.

3. The answering party may not allege lack of information or knowledge

unless the answering party has made a reasonable inquiry into the matter.

4. If the answering party fails to answer or object to a matter in a timely

manner, the matter is admitted.

5. Admissions are conclusive unless the court permits the answering party to

withdraw or amend its answer.

6. Great tool for narrowing the facts in dispute.

H. Agency Counsel Role in Responding to Interrogatories, Requests for

Production and Admissions.

1. Identify who should answer.

2. Inform all potential witnesses and affected activities that a lawsuit has

been filed; that, as a normal part of discovery, plaintiff is entitled to

inspect and copy all related documents; that “documents” includes

electronic documents, such as email and “personal” notes kept in

performing official duties, such as field notebooks; that witnesses are not

to dispose of any such documents; that they should begin to collect and

identify all files related to the lawsuit – including those at home.

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3. Current employees also should be told they are represented by DOJ and

the contractor is represented by counsel, and they should not talk to the

contractor or its attorneys about the lawsuit.

I. Discovery Planning Conference.

1. Agency counsel and answering witnesses should discuss with DOJ a

strategy for responding, to include:

(1) Objections in lieu of responses (what we won’t tell them);

(2) Objections with limited responses (what we will tell them),

e.g., requests for “all documents” or “all information

related to.”

(3) In which cases will DOJ will produce documents instead of

responding to an interrogatory in accordance with RCFC

33(c).

(4) How documents will be organized and stamped, including

adoption of a stamping protocol (e.g.. “HQDA0001 . . . ,”

“AMC0001 . . . .”) to identify source of produced

documents and to identify them as having been subject to

discovery effort.

(5) How copying and inspection will be handled – security

concerns? Cost concerns?

2. Preparation of a privilege log. All relevant documents not produced and

not covered by an objection must be listed on a privilege log furnished to

the other side. Typically, they list to, from, date, subject, and privilege

claimed. They should be sufficiently detailed so that the basis for the

privilege is evident but does not disclose the privileged matter. E.g., “Ltr.

From MAJ Jones, AMC Counsel, to Smith, CO re: claim.”

J. Failure to Cooperate in Discovery.

1. Motion to Compel Discovery. RCFC 37(a)(3). If a party or a deponent

fails to cooperate in discovery, the party seeking the discovery may move

for an order compelling discovery.

2. Expenses. RCFC 37(a)(5). The court may order the losing party or

deponent to pay the winning party’s reasonable expenses, including

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attorney fees.

3. Sanctions. RCFC 37(b).

(1) If a deponent fails to answer a question after being directed

to do so by the court, the court may hold the deponent in

contempt of court.

(2) If a party fails to provide or permit discovery after being

directed to do so, the court may take one or more of the

following actions:

(a) Order that designated facts be taken as established

for purposes of the action;

(b) Refuse to allow the disobedient party to support or

oppose designated claims or defenses;

(c) Refuse to allow the disobedient party to introduce

designated facts into evidence;

(d) Strike pleadings in whole or in part;

(e) Stay further proceedings until the order is obeyed;

(f) Dismiss the action in whole or in part;

(g) Enter a default judgment against the disobedient

party;

(h) Hold the disobedient party in contempt of court; and

(i) Order the disobedient party—and/or the attorney

advising that party—to pay the other party’s

reasonable expenses, including attorney’s fees.

(3) In Mortenson Co. v. United States, 996 F.2d 1177 (Fed.

Cir. 1993), the CAFC affirmed a $22 million award of

attorney fees and costs against the United States as a Rule

37(a)(4) sanction for the VA's failure to comply with

certain discovery orders.

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IX. TRIAL.

A. Meeting of counsel.

1. No later than 60 days before the pretrial conference, counsel for the parties

shall:

a. Exchange all exhibits (except impeachment) to be used at trial.

b. Exchange a final list of names and addresses of witnesses.

c. To disclose to opposing counsel the intention to file a motion.

d. Resolve, if possible, any objections to the admission of oral or

documentary evidence.

e. Disclose to opposing counsel all contentions as to applicable facts

and law, unless previously disclosed.

f. Engage in good-faith, diligent efforts to stipulate and agree to facts

about which the parties know, or have reason to know, there can be

no dispute for the purpose of simplifying the issues at trial.

g. Exhaust all possibilities of settlement.

2. Ordinarily, the parties must file:

h. A memorandum of contentions of fact and law;

i. A joint statement setting forth the factual and legal issues that the

court must resolve NLT 21 days before the pretrial conference;

j. A witness list;

k. An exhibit list.

3. Failure to identify an exhibit or a witness may cause the Court to exclude

the exhibit or witness. Appendix A ¶¶ 13(a), 13(b), 15.

4. The attorneys who will try the case must attend the pretrial conference.

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B. Pre-Trial Preparation.

1. Contacting all witnesses -- ensuring none will be gone during trial and

that former Government employees have signed representation agreements

if they wish to.

2. Outlining Witness Testimony.

3. Preparing Witnesses.

4. Preparing FRE 1006 summaries.

5. Copying and organizing documents.

C. Offers of Judgment.

1. RCFC 68.

2. The Government may make an offer of judgment at any time more than 10

days before the trial begins.

3. If the offeree fails to accept the offer and the judgment the offeree finally

obtains is not more favorable than the offer, the offeree must pay any costs

the Government incurred after it made the offer.

X. SETTLEMENT.

A. Authority

1. Attorney General has authority to settle matters in litigation, 28 U.S.C.

§ 516, and has delegated that authority depending upon dollar value of

settlement. 28 C.F.R. § 0.160, et seq., e.g., AAG, Civil Division may

settle a defensive claim when the principal amount of the proposed

settlement does not exceed $2 million.

2. The AAG has redelegated office heads and U.S. Attorneys, but

redelegation subject to exceptions, including case where agency opposes

settlement.

3. Whether matter is “in litigation,” is not always clear. The Sharman Co.,

Inc. v. United States, 2 F.3d 1564 (1993); Boeing Co. v. United States, Cl.

Ct. No. 92-14C (June 3, 1992), reversed 92-5129, 92-5131 (Fed. Cir.,

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March 19, 1992) (unpublished); Durable Metal Products v. United States,

21 Cl. Ct. 41, 45 (1990); but see Hughes Aircraft Co. v. United States, 209

Cl. Ct. 446, 465, 534 F.2d 889, 901 (1976). The body of law on this issue

continues to develop. See, e.g. Alaska Pulp Corporation v. United States,

34 Fed. Cl. 100 (1995) (default terminations); Volmar Construction, Inc.

v. United States, 32 Fed. Cl. 746 (1995) (claims and setoffs); Cincinnati

Electronics Corp. v. United States, 32 Fed. Cl. 496 (1994) (default

terminations).

4. When in doubt, assume matter is in litigation and all discussions should be

made through DOJ.

B. Assume a Discussion About Settlement Is Coming.

1. The agency has little influence on the process when the agency counsel is

not sufficiently familiar with case developments to offer a persuasive

opinion.

2. Explain to your clients that ADR and, if warranted, settlement are more

arrows in the quiver for resolving the dispute.

3. Explain that settlement should be used when it avoids injustice, when the

defense is unprovable, when a decision can be expected to create an

unfavorable precedent; and when settlement provides a better outcome

(including the fact it might include consideration that a court judgment

will not) than could be expected from a trial. The availability of expiring

contract funds might also be considered.

4. In that regard, help client understand difference between their believing a

fact, and it being legally significant and provable.

5. Identify early on who within the agency has authority to recommend

settlement, and who within the agency has the natural interest or “pull” to

affect that recommendation, such that they should be continually updated

on the litigation.

C. Settlement Procedure.

1. Agencies must be consulted regarding “any significant proposed action if

it is a party, if it has asked to be consulted with respect to any such

proposed action, or if such proposed action in a case would adversely

affect any of its policies.” U.S. Attorney’s Manual, para.4-3.140C

(available at www.usdoj.gov).

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2. Litigation attorney coordinates with installation attorney and contracting

officer to determine whether settlement is appropriate.

3. If settlement deemed appropriate, the litigation attorney prepares a

settlement memorandum. Next the litigation attorney, submits the

memorandum through the Branch Chief to the Chief, Litigation Division.

The Chief, Litigation Division must approve all settlement agreements.

He has authority to act on behalf of TJAG and the Secretary of the Army

on litigation issues, including the authority to settle or compromise cases.

See AR 27-40, paragraph 1-4d(2).

4. Finally, the recommendation of the Chief, Litigation Division is forwarded

to the DOJ. Then DOJ goes through a similar process to get approval of a

settlement.

XI. ALTERNATIVE DISPUTE RESOLUTION (ADR).

A. The COFC pilot program

1. The COFC pilot program requires that designated cases be automatically

referred to an ADR judge; however, the parties may opt out.

2. Each party presents an abbreviated version of its case to a neutral advisor,

who then assists the parties to negotiate a settlement. Suggested

procedures are set forth in the General Order.

B. ADR Methods

1. The court offers ADR methods for use in appropriate cases.

(1) Use of a settlement judge.

(2) Mini-trial.

2. Both ADR methods are designed to be voluntary and flexible.

3. If the parties want to employ one of the ADR methods, they should notify

the presiding judge as soon as possible.

(1) If the presiding judge determines that ADR is appropriate,

the presiding judge will refer the case to the Office of the

Clerk for the assignment of an ADR judge.

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(2) The ADR judge will exercise ultimate authority over the

form and function of each ADR method.

(3) If the parties fail to reach a settlement, the Office of the

Clerk will return the case to the presiding judge’s docket.

XII. POST JUDGMENT.

A. Final Judgment Rule.

1. Unless timely appealed, a final judgment of the court bars any further

claim, suit, or demand against the United States arising out of the matters

involved in the case or controversy. 28 U.S.C. § 2519.

B. New Trials.

1. 28 U.S.C. § 2515; RCFC 59.

2. The COFC may grant a new trial or rehearing or reconsideration based on

common law or equity.

3. The COFC may grant the Government a new trial—and stay the payment

of any judgment—if it produces satisfactory evidence that a fraud, wrong,

or injustice has been done to it:

(1) While the action is pending in the COFC;

(2) After the Government has instituted proceedings for

review; or

(3) Within 2 years after final disposition of the action.

C. Appeals.

1. See generally, Jennifer A. Tegfeldt, A Few Practical Considerations in

Appeals Before the Federal Circuit, 3 FED. CIR. BAR. J. 237 (1993).

2. A party may appeal an adverse decision to the CAFC within 60 days of the

date the party received the decision. 28 U.S.C. § 2522. See RCFC 72.

3. Solicitor General approves/disapproves appeals by the United States.

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D. Paying plaintiff attorney fees.

1. A different attorney fee statute. The Court of Federal Claims grants Equal

Access To Justice Act (EAJA) relief pursuant to 28 U.S.C. § 2412, unlike

the BCAs, which grant EAJA relief pursuant to 5 U.S.C. § 504. See also,

Form 5 in Appendix of the RCFC (application form for EAJA fees).

E. Payment of Judgments.

1. An agency may access the “Judgment Fund” to pay “[a]ny judgment

against the United States on a [CDA] claim.” 41 U.S.C. § 612(a). See 31

U.S.C. § 1304; cf. 28 U.S.C. § 2517.

2. The Judgment Fund also pays compromises under the Attorney General’s

authority.

3. If an agency lacks sufficient funds to cover an informal settlement

agreement, it may “consent” to the entry of a judgment against it. Bath

Irons Works Corp. v. United States, 20 F.3d 1567, 1583 (Fed. Cir. 1994).

4. An agency that accesses the Judgment Fund to pay a judgment must repay

the Fund from appropriations that were current at the time the judgment

was rendered against it. 41 U.S.C. § 612(c).

XIII. BID PROTESTS AT THE COURT OF FEDERAL CLAIMS

A. COFC jurisdiction to entertain a bid protest must be “in connection with a

procurement.”

1. The Tucker Act, 28 U.S.C. § 1491(b), as amended by Administrative

Dispute Resolution Act of 1996, Pub. L. No. 104-320 (October 19, 1996),

section 12, provides the Court “jurisdiction to render judgment on an

action by an interested party objecting to a solicitation by a Federal

agency for bids or proposals for a proposed contract or a proposed award

or the award of a contract or any alleged violation of statute or

regulation in connection with a procurement or a proposed procurement.”

2. This jurisdictional mandate has been broadly construed by the Federal

Circuit. See Distributed Solutions, Inc. v. United States, 539 F.3d 1340

(Fed. Cir. 2008), Weeks Marine, Inc. v. United States, 575 F.3d 1352

(Fed. Cir. 2009), and Resource Conservation Group, LLC v. United States,

597 F.3d 1238 (Fed. Cir. 2010).

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3. COFC bid protest jurisdiction includes pre-award and post-award protests.

a. Pre-award: protests can challenge such things as: an agency's

anticipated contract award to an identified low bidder or apparent

successful offeror; requirements in a solicitation; alleged de facto

sole source specifications; elimination of an offeror from (or

improper inclusion of an offeror in) a competitive range;

responsiveness and responsibility determinations; any change or

amendment to a solicitation that is alleged to prejudice the litigant;

any purported illegality or regulatory violation within the

solicitation process; etc.

b. Post-award: protests generally can raise the same challenges as a

pre-award protest and, in addition, can challenge the award

decision. However, “a party who has the opportunity to object to

the terms of a government solicitation containing a patent error and

fails to do so prior to the close of the bidding process waives its

ability to raise the same objection afterwards in a § 1491(b)

action.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308,

1313 (Fed. Cir. 2007). Moreover, post-award, the relief available

may be limited, as a practical and equitable matter, if a protest is

filed long after award. This does not, however, necessarily make

the protest untimely.

4. Relief.

(1) COFC injunctive authority allows Court to issue temporary

restraining orders for a maximum of 28 days, a preliminary

or permanent injunction, and may award bid and proposal

preparation costs if the plaintiff is successful on the merits.

PGBA, LLC v. United States, 389 F.3d 1219, 1225-27

(Fed. Cir. 2004). Purely declaratory relief is usually of

minimal significance in bid protests. Any coercive order of

the court requiring an agency to do, or not do, something in

connection with a procurement is treated as injunctive relief

and requires weighing the equities. PGBA, 389 F.3d at

1228.

(2) Court’s grant of relief may include ordering the termination

of a contract that has been awarded, the court cannot order

a contract award to a particular bidder. United Int'l

Investig. Servs., Inc. v. United States, 41 Fed. Cl. 312, 323-

24 (1998) (citing Hydro Eng'g, Inc. v. United States, 37

Fed. Cl. 448, 461 (1997), and Scanwell Labs., Inc. v.

Shaffer, 424 F.2d 859, 869 (D.C. Cir. 1970)).

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Practice Tip: Pursuant to RCFC 65(c) the Court must

have plaintiff post a bond if a TRO/PI is issued. However,

the Court has discretion on the amount of the bond, so we

have the burden of establishing the amount of damages that

will be incurred during the pendency of the injunction.

Plan to have a declaration by the contracting officer

addressing the costs, and any other harm the agency will

suffer, in the event the procurement is enjoined.

5. Override of the automatic stay in CICA.

a. The Competition in Contract Act (“CICA”), 31 U.S.C. § 3553,

requires the agency to suspend performance of the contract during

the pendency of the GAO protest. 31 U.S.C. § 3553(d)(3)(A) and

(B). However, CICA permits agency to override the stay provision

if agency finds in a determination and findings (“D & F”) that

continued performance is (1) in the best interests of the United

States, or (2) urgent and compelling circumstances that

significantly affect interests of the United States will not permit

delay. Id. at § 3353(d)(3)(C).

b. COFC may review. RAMCOR Servs. Group, Inc. v. United

States, 185 F.3d 1286, 1291 (Fed. Cir. 1999); Unisys Corp. v.

United States, 2009 WL 5098195 *6 (Fed. Cl. 2009); Spherix, Inc.

v. United States, 62 Fed. Cl. 497, 503-04 (2003).

c. Override decisions are highly scrutinized by the Court. Recent

decisions have applied the “arbitrary and capricious” standard

rather than those announced in Reilly’s Wholesale Produce v.

United States, 73 Fed. Cl. 705 (2006). See PMTech, Inc. v. United

States, 95 Fed. Cl. 330 (2010), Planetspace, Inc. v. United States,

86 Fed. Cl. 566 (2009), The Analysis Group, LLC v. United States,

2009 WL 3747171, 3 Fed. Cl. (2009), and Frontline Healthcare

Workers Safety Foundation, Ltd. v. United State, 2010 WL

637790, 1, Fed. Cl. (2010).

d. If your agency is considering an override, contact us before the

D & F is finalized.

B. Standard of Review.

1. Limited to Administrative Record.

(1) The scope of the review is limited to the administrative

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record. Bannum, Inc. v. United States, 404 F.3d 1346,

1355-56 (Fed. Cir. 2005) (the court resolves issues of law

and decides all necessary issues of fact based upon the

administrative record created before the agency); see also,

Camp v. Pitts, 411 U.S. 138, 142-43 (1973) (the proper

focus of the court’s scrutiny is the agency’s articulated

rationale for the decision, and the administrative record

underlying it); Cincom Sys., Inc. v. Untied States, 37 Fed.

Cl. 663, 671 (1997).

(2) RCFC 52.1(b) provides the standard for review of agency

action on the basis of the administrative record. See, A &

D Fire Protection, Inc. v. United States, 72 Fed. Cl. 126,

131 (2006).

(3) Pursuant to RCFC 52,1(b), the court decides whether

“given all the disputed and undisputed facts, a party has

met its burden of proof based on the evidence in the

record.” Id. (citing Bannum, Inc. v. United States, 404

F.3d 1346, 1356 (Fed. Cir. 2005).

(4) The plaintiff bears the burden of meeting this standard by a

preponderance of the evidence. Rotech Healthcare, Inc. v.

United States, 71 Fed. Cl. 393, 401 (2006).

2. Administrative Procedure Act.

a. Judicial review of the agency’s actions in a bid protest is

not a de novo proceeding.

In the bid protest context, the Court resolves challenges to

agency actions under the standards provided in the

Administrative Procedure Act, 5 U.S.C. § 706. See 28

U.S.C. § 1491(b)(4) (incorporating by reference

Administrative Procedure Act’s standard of review);

Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.

Cir. 2005); Impressa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).

b. The Court’s standard of review in bid protests is “highly

deferential.” Advanced Data Concepts, Inc. v. United

States, 216 F.3d 1054, 1057 Fed. Cir. 2000).

c. An agency’s contracting decision may be set aside only if it

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is “arbitrary, capricious, and abuse of discretion, or

otherwise not in accordance with law.” The Centech

Group, Inc. v. Untied States, 554 F.3d 1029, 1037 (Fed.

Cir. 2009); Impressa Construzioni Geom. Domenico Garufi

v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001); see

also, Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 416 (1971), overruled on other grounds by,

Califano v. Sanders, 430 U.S. 99 (1977); The Cube Corp. v.

United States, 46 Fed. Cl. 368, 374 (2000).

d. Pursuant to this standard, the court may set aside a

procurement decision upon the protester’s showing that

“(1) the procurement official’s decision lacked a rational

basis; or (2) the procurement procedure involved a

violation of regulation or procedure.” Impressa

Construzioni Geom. Domenico Garufi v. United States, 238

F.3d 1324, 1332-33 (Fed. Cir. 2001); Galen Med. Assoc.,

Inc. v. United States, 369 F.3d 1324, 1329-31 (Fed. Cir.

2004) (decision set aside only if there has been a “clear and

prejudicial” violation of law or the agency’s decision lacks

a rational basis).

3. Presumption of Regularity.

(1) In evaluating an agency’s decision, the court “is not

empowered to substitute its judgment for that of the

agency.” Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971); Honeywell, Inc. v. United States,

870 F.2d 644, 648 9Fed. Cir. 1989) (quotations omitted)

(“If the court finds a reasonable basis for the agency’s

action, the Court should stay its hand even though it might,

as an original proposition, have reached a different

conclusion as to the proper administration and application

of the procurement regulations.”)

(2) An agency’s procurement decisions are entitled to a

“presumption of regularity,” Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and the

Court should not substitute its judgment for that of the

agency. Redland Genstar, Inc. v. United States, 39 Fed. Cl.

220 (1997); Cincom Sys., Inc. v. United States, 37 Fed.

Cl. 663, 672 (1997).

c. The disappointed bidder “bears a heavy burden” and the

procurement officer is “entitled to exercise discretion upon

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a broad range of issues confronting [her].” Impressa

Construzioni Geom. Domenico Garufi v. United States, 238

F.3d 1324, 1332 (Fed. Cir. 2001).

d. This burden “is not met by reliance on [the] pleadings

along, or by conclusory allegations and generalities.”

Bromley Contracting Co. v. United States, 15 Cl. Ct. 100,

105 (1988); see also Campbell v. United States, 2 Cl. Ct.

247, 249 (1983).

4. Agency Action In Response to GAO Recommendation

(1) Where an agency follows a GAO recommendation, even if

the GAO recommendation is different from the initial

decision of the contracting officer, the agency’s decision

shall be deemed “proper unless the [GAO’s] decision was

itself irrational.” Honeywell, Inc. v. United States, 870

F.2d 644, 648 (Fed. Cir. 1989); see also The Centech

Group, Inc. v. Untied States, 554 F.3d 1029, 1039 (Fed.

Cir. 2009).

(2) The Court will only “inquire whether the GAO decision

was rational and the agency justifiably relied upon it.” SP

Sys., Inc. v. United States, 86 Fed. Cl. 1, 13 (2009) (citing

Honeywell, Inc. v. United States, 870 F.2d 644, 647 (Fed.

Cir. 1989).

(3) GAO decisions are “traditionally treated with a high degree

of deference, especially in bid protest actions.” Grunley

Walsh Int’l LLC v. United States, 78 Fed. Cl. 35, 39 (2007)

(citations omitted).

Even upon the demonstration of a significant error, a protester must still

establish that it was prejudiced and that, but for the error, there was a

substantial chance that it would have received the award. Alfa Laval

Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999)

(citing Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir.

1996)).

C. Standard for injunctive relief.

1. Four elements:

a. Plaintiff is likely to succeed on the merits;

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b. Plaintiff will suffer irreparable harm;

c. Plaintiff’s harm outweighs the harm to the government; and

d. Public interest favors equitable relief.

2. Only difference in a preliminary and permanent injunction is a plaintiff

must show likelihood of success on merits for a preliminary injunction and

actual success on the merits for a permanent injunction.

3. In a recent case, Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743

(2010), the Supreme Court held that the “drastic and extraordinary

remedy” of injunctive relief should not be “granted as a matter of course.”

Id. at 2761. Importantly, the Supreme Court further held “is not enough

for a court considering a request for injunctive relief to ask whether there

is a good reason why an injunction should not issue; rather, a court must

determine that an injunction should issue under the traditional four-factor

test[.]” Id.

D. The Administrative Record.

1. What is included:

(1) Appendix C, RCFC, contains the Court’s procedures in bid

protest proceedings. Paragraph VII of Appendix C

provides a fairly comprehensive list of the information that

should be included in the record.

Practice tip: Be familiar with the requirements of

Appendix C. As soon as you think a procurement may

result in a COFC protest, begin to compile the material

listed in Appendix C for inclusion in the administrative

record. The agency is responsible for organizing the

documents and providing an index.

(2) The agency should compile the full administrative record

that was before it at the time it made the decision under

review. James Madison Ltd. v. Ludwig, 82 F.3d 1085,

1095 (D.C. Cir. 1996).

(3) The Court should generally have before it the same

information that was before the agency when it made its

decision. Mike Hooks, Inc. v. United States, 39 Fed. Cl.

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147, 154 (1997).

(4) Thus, the administrative record should consist of the

material that the agency developed and considered, directly

or indirectly, in making the challenged decision. Bar MK

Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993); Ad

Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139

(D.D.C. 2002); Nat’l Ass’n of Chain Drug Stores v. U.S.

Dep’t of Health & Human Servs., 631 F. Supp. 2d 23, 26

(D.D.C. 2009) (citing Pac. Shores Subdiv., Cal. Water Dist.

v. U. S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 4

(D.D.C. 2006)); Tafas v. Dudas, 530 F. Supp. 2d 786, 793

(E.D. Va. 2008).

(5) The agency should include all materials that might have

influenced its decision, not just the documents upon which

it relied. Ad Hoc Metals Coal. v. Whitman, 227 F. Supp.

2d 134, 139 (D.D.C. 2002) (include materials considered or

relied upon); Ctr. for Native Ecosystems v. Salazar, 711 F.

Supp. 2d 1267, 1275-76 (D. Colo. 2010) (If decision based

upon the work of subordinates, include the materials

considered by the subordinates).

(6) GAO proceedings – Appendix C ¶ 22 of the Rules of the

Court of Federal Claims enlarges the usual scope of an

administrative record by including the entire record of a

timely protest with the GAO, pursuant to the Competition

in Contracting Act, 31 U.S.C. § 3553(d)(3). This can

include, among other things, post hoc testimony and

evidence.

(7) An agency may not exclude from the administrative record

documents that reflect pertinent but unfavorable

information. Blue Ocean Inst. v. Gutierrez, 503 F. Supp.

2d 366, 369 (D.D.C. 2007).

However, the administrative need not include underlying

source documents that were not themselves considered by

the agency. Sequoia Forestkeeper v. U. S. Forest Serv.,

No. 09-392, 2010 WL 2464857, at *6 (E.D. Cal. June 12,

2010).

2. What is NOT included:

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a. The administrative record does not include privileged

materials, such as documents that fall within the

deliberative process privilege, attorney-client privilege, and

work product privilege. Town of Norfolk v. U.S. Army

Corps of Eng’rs, 968 F.2d 1438, 1457-58 (1st Cir. 1992);

Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134,

143 (D.D.C. 2002) (“Judicial review of agency action

should be based on an agency’s stated justifications, not the

predecisional process that led up to the final, articulated

decision.”).

b. The general rule is that these documents are not logged as

withheld because they are not part of the administrative

record. Amfac Resorts LLC v. Dept. of Interior, 143 F.

Supp. 2d 7, 13 (D.D.C. 2001) (“deliberative intra-agency

memoranda and other such records are ordinarily

privileged, and need not be included in the record”); New

York v. Salazar, 701 F. Supp. 2d 224, 236 (N.D.N.Y. 2010)

(“as a matter of law, privileged documents are not part of

the administrative record”); Blue Ocean Inst. v. Gutierrez,

503 F. Supp. 2d 366, 369 (D.D.C. 2007); but see Ctr. for

Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1275-

76, n.10 (D. Colo. 2010) (requiring privilege log); Miami

Nation of Indians of Ind. v. Babbitt, 979 F. Supp. 771, 778

(N.D. Ind. 1996) (requiring the Government to seek a

protective order to assert deliberative process privilege).

c. Internal memoranda (e.g., e-mail messages and draft

documents) made during the decisional process are not

included in a record. Norris & Hirshberg, Inc. v. SEC, 163

F.2d 689, 693 (D.C. Cir. 1947); see San Luis Obispo

Mothers for Peace v. NRC, 789 F.2d 26, 45 (D.C. Cir.) (en

banc) (“We think the analogy to the deliberative processes

of a court is an apt one. Without the assurance of secrecy,

the court could not fully perform its functions.”), cert.

denied, 479 U.S. 923 (1986). There are exceptions to this

rule. New York v. Salazar, 701 F. Supp. 2d 224, 238

(N.D.N.Y. 2010) (where decision-making process is itself

the subject of the litigation); In re Subpoena Duces Tecum

Served on the Office of the Comptroller, 156 F.3d 1279,

1280 (D.C. Cir. 1998); see also National Courier Ass’n v.

Bd. of Governors, 516 F.2d 1229, 1242 (D.C. Cir. 1975).

d. EXCEPTION: Internal and deliberative memoranda may

be required in an administrative record where a protestor

makes an initial showing to support an allegation of bad

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faith; i.e., when the Court has determined the plaintiff has

made a well-grounded attack upon the decision-making

process itself.

3. Supplementation

(1) Definitions.

1. Supplement. A protester seeks to supplement, or go

beyond, the record when the protester moves to include

material in the administrative record that was not before the

decision maker, i.e., material that does not belong in the

record. Supplementing the administrative record with

extra-record evidence is different from correcting or

completing the administrative record.

2. Correct or Amend. A protester seeks to complete, or

correct, the record when the protester moves to include in

the administrative record material that should have been

included, but was nonetheless inadvertently omitted.

b. General Rule. Courts generally deny requests to

supplement the administrative record.

(1) Supplementation is not permitted because extra-record or

ex-post facts and opinions simply are not relevant to the

Court’s inquiry. See, e.g., Emerald Coast Finest Produce,

Inc. v. United States, 76 Fed. Cl. 445, 448-49 (2007)

(refusing to add to the record declarations not considered

by the agency when making its award decision); Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)

(court considers only those materials that were “before the

decision-making authority at the time of its decision.”);

Axiom Resource Management, Inc. v. United States, 564

F.3d 1374, 1379 (2009) (judicial review is generally limited

to “the administrative record already in existence, not some

new record made initially in the reviewing court”); L-3

Communications EOTech, Inc. v. United States, 87 Fed. Cl.

656, 672 (2009) (no “unfettered right to submit declarations

giving its commentary on every aspect of the … process,

and to have those declarations included in the

administrative record[.]”).

(2) Supplementing the administrative record is “an unusual

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action that is rarely appropriate.” Weiss v. Kempthorne,

No. 08-1031, 2009 WL 2095997, at *3 (W.D. Mich. July

13, 2009); Am. Wildlands v. Kempthorne, 530 F.3d 991,

1002 (D.C. Cir. 2008); Medina Co. Envtl. Action Ass’n v.

Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010).

c. Supplementation Post-Axiom:

(1) In Axiom, CAFC reiterated the restrictive approach to

supplementing the administrative record.2

(2) Supplementation of the administrative record is available

only when “the omission of extra-record evidence

precludes effective judicial review.” Axiom, 564 F.3d at

1379; see also Murakami v. United States, 46 Fed. Cl. 731,

735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)

(“exceptions to the general rule against extra-record

evidence are based on necessity, rather than convenience,

and should be triggered only where the omission of extra-

record evidence precludes effective judicial review.”)

(3) Allowing supplementation of the record, without first

evaluating whether the record is sufficient to permit

meaningful review is an abuse of discretion. Axiom, 564

F.3d at 1380 (“the trial court abused its discretion in this

case” by failing “to make the required threshold

determination of whether additional evidence was

necessary.”)

(4) Therefore, before any supplementation is allowed, the

Court first makes a threshold determination of “whether

supplementation of the record [is] necessary in order not ‘to

frustrate effective judicial review.’” Axiom, 564 F.3d at

1379 (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)).

E. What to Expect After Protest Is Filed.

2 Before Axiom, this court “frequently . . . adopted and applied [eight] exceptions to the

review of outside evidence” based on the District of Columbia Circuit’s decision in Esch v.

Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). Protection Strategies, Inc. v. United States, 76 Fed.

Cl. 225, 234 (2007). In Axiom, the Federal Circuit repudiated the Esch factors and described a

far more restrictive approach to supplementation. 564 F.3d at 1380.

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1. Process starts with 24 hour advance notice filed by plaintiff.

a. Appendix C, ¶ 3, RCFC, requires plaintiff to file a 24-hour notice

with our office that identifies the procuring agency, contact

information for the contracting officer and agency counsel,

whether plaintiff is seeking a TRO or preliminary injunction

(“TRO/PI”), whether plaintiff has discussed the TRO/PI with our

office, whether there was a GAO protest, and whether a protective

order will be needed.

b. Failure to file 24-hour notice is not a jurisdictional defect.

2. Upon receipt of the 24-hour notice, the case is assigned to a DOJ trial

attorney, who will contact the contracting officer and agency counsel

directly prior to filing a notice of appearance (“NOA”) with COFC.

3. This is time-sensitive matter and COFC will act with a sense of urgency

and hold a scheduling teleconference for either the same day or the day

after the NOA is filed.

a. Agency counsel and, in some cases, the contracting officer, should

expect to participate in the initial teleconference.

b. Court typically concerned with:

(1) Addressing TRO/PI if raised by plaintiff (will agency

voluntarily stay proceedings?);

(2) Status of the procurement (pre or post award?);

(3) Determining if there will be an intervenor;

(4) Setting a briefing schedule, which includes filing of the

administrative record; and

(5) Did protester initially file at the GAO?

Practice Tip: If there was a GAO protest, please send the legal

memorandum and contracting officer statement directly to the

assigned trial attorney as soon as possible to expedite the learning

curve.

F. Protective Orders:

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1. Order limiting the disclosure of source selection, proprietary, and other

protected information to those persons admitted to that order. The order

also governs how such information is to be identified and disposed of when

the case is over. The COFC regularly issues these orders, although in at

least one case, the COFC denied the request of the government and the

apparent awardee to issue a protective order and ordered the release of the

government’s evaluation documentation relating to the protester’s proposal

to the protester. See Pike’s Peak Family Housing, Inc. v. United States, 40

Fed. Cl. 673 (1998).

2. Once the order is issued, one gets admitted to the order by submitting an

appropriate application. Form 8 of the RCFC Appendix contains a model

protective order and Form 9 of the RCFC Appendix is a model application

for access by outside counsel, inside counsel, and outside experts.

3. Ordinarily, objections must be made within 2 business days of receipt of a

given application. If no objections are made within 2 business days, the

applicant is automatically admitted to the protective order.

4. COFC, DOJ, and agency personnel are automatically admitted.

5. Most judges request or accept proposed redactions from court orders and

opinions and decide what protected information to redact. See, e.g.,

WinStar Communications, Inc. v. United States, 41 Fed. Cl. 748, 750 n.1

(1998). Recently, COFC has scrutinized proposed redactions closely. See,

e.g., Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 314 n.1 (2009).

XIV. THE CONTRACT DISPUTES ACT OF 1978. 41 U.S.C. §§ 7101-7109.

A. Applicability.

1. 41 U.S.C. § 7102.

2. The CDA applies to all express or implied contracts an executive agency

enters into for:

a. The procurement of property, other than real property in being;

b. The procurement of services;

c. The procurement of construction, alteration, repair or maintenance

of real property; or

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d. The disposal of personal property.

3. It has been the law that the CDA does not normally apply to contracts

funded solely with nonappropriated funds (NAFs), with the exception of

contracts with the exchanges listed in the Tucker Act. 41 U.S.C.

§ 7102(a); 28 U.S.C. 1491(a)(1). Recently, however, the Federal Circuit

has held, en banc, that Tucker Act jurisdiction encompasses NAFs. See Slattery

v. United States, 635 F.3d 1298 (2011).

B. Jurisdictional prerequisites:

1. Contractor has submitted a proper claim to the contracting officer, or

2. The Government has submitted a proper claim (e.g., termination, LDs,

demand for money).

3. The contracting officer has issued a final decision, or is deemed by

inaction to have denied the claim. Tri-Central, Inc. v. United States, 230

Ct. Cl. 842, 845 (1982); Paragon Energy Corp. v. United States, 227 Ct.

Cl. 176 (1981).

4. The COFC considers the case de novo. 41 U.S.C. § 7104(b)(4). A

contracting officer’s findings are not binding on the Court, or the

Government, nor are omissions by the contracting officer. Wilner v.

United States, 24 F.3d 1397, 1401 (Fed. Cir.1994). Thus, so long as the

information was available to the Government, the COFC may consider it

in reviewing the contracting officer’s decision. For example, a

termination for default may be sustained at the COFC upon any ground

existing at the time of termination, even one not then known to the

contracting officer. See Empire Energy Mgmt. Sys., Inc. v. Roche, 362

F.3d 1343, 1357 (Fed. Cir.2004).

5. The CDA is a waiver of sovereign immunity for the payment of interest.

Interest accrues from the date the contracting officer receives the claim

until the contractor receives its money.

6. Not limited to monetary damages.

a. COFC possesses jurisdiction to render judgments in “a

dispute concerning termination of a contract, rights in

tangible or intangible property, compliance with cost

accounting standards, and other nonmonetary disputes on

which a decision of the contracting officer has been issued”

pursuant to the CDA. 28 U.S.C.A. § 1491(a).

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b. In recent years, COFC has used this authority to review

questions of contract administration, such as performance

evaluations. See Todd Const. L.P. v. United States, 85 Fed.

Cl. 34 (2008), 94 Fed. Cl. 100 (2010); BLR Group of

America, Inc. v. United States, 84 Fed. Cl. 634 (2008).

7. Subcontractors:

a. Generally cannot directly bring a CDA challenge, because

there is no privity of contract with the United States, unless

the prime contractor is a “mere government agent.” United

States v. Johnson Controls, Inc., 713 F.2d 1541, 1550-51

(Fed. Cir. 1983).

b. While subcontractors that were third-party beneficiaries of

the contract between the Government and the prime

contractor cannot proceed under the CDA, they may bring a

similar claim in COFC under the Tucker Act. Winter v.

FloorPro, Inc., 570 F.3d 1367 (Fed. Cir. 2009). See

FloorPro, Inc. v. United States, Fed. Cl. , 2011 WL

1289061 (2011).

Sureties: CDA or Equitable Subrogation. National Surety v.

United States, 118 F.3d 1543 (Fed. Cir. 1997); Fireman's Fund Ins.

Co. v. United States, 909 F.2d 495 (Fed. Cir. 1990).

C. Statute of Limitations.

1. For contracts awarded on or after October 1, 1995, a contractor must

submit its claim within six years of the date the claim accrues. 41 U.S.C.

§ 605(a)). This statute of limitations provision does not apply to

Government claims based on contractor claims involving fraud.

2. Complaint filing. The contractor must file its complaint in the COFC

within 12 months of the date it received the contracting officer’s final

decision. 41 U.S.C. § 7104(b)(3). See Borough of Alpine v. United

States, 923 F.2d 170 (Fed. Cir. 1991).

3. Reconsideration by the Contracting Officer. A timely request made to the

contracting officer for reconsideration of a decision, that results in an

actual reconsideration, suspends the “finality” of the decision, and

provides a new statute of limitations period. See Bookman v. United

States, 197 Ct. Cl. 108, 112 (1972).

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4. “Deemed Denied.” No statute of limitations?

a. Under the CDA, upon receipt of a written claim from a

contractor, a contracting officer must issue a final decision

within sixty days. 41 U.S.C. § 605(c)(1), (2). If the

Contracting Officer fails to issue a decision within the

requisite time period, the claim may be deemed denied. 41

U.S.C. § 605(c)(5).

b. If no decision is issued, the Court of Federal Claims has

held that CDA’s one-year statute of limitations does not

begin to run and the Tucker Act’s six year statute of

limitations does not apply, because the claim remains a

CDA claim. See Environmental Safety Consultants, Inc. v.

United States, 95 Fed. Cl. 77 (2010); System Planning v.

United States, 95 Fed. Cl. 1 (2010).

D. Consolidation of Suits.

If two or more actions arising from one contract are filed in COFC and one or

more agency boards, for the convenience of parties or witnesses or in the interest

of justice, COFC may order the consolidation of the actions in that court or

transfer any actions to or among the agency boards involved. 41 U.S.C. §

7107(d).

E. Relationship Between COFC and the Boards

1. 41 U.S.C. §§ 7104(a),(b)(1).

2. The CDA provides alternative forums for challenging a contracting

officer’s final decision.

3. Once a contractor files its appeal with a particular forum, this election is

normally binding and the contractor may no longer pursue its claim in the

other forum. See Bonneville Assocs. v. United States, 43 F.3d 649 (Fed.

Cir. 1994) (dismissing the contractor’s suit because the contractor

originally elected to proceed before the GSBCA); see also Bonneville

Assocs. v. General Servs. Admin., GSBCA No. 13134, 96-1 BCA ¶

28,122 (refusing to reinstate the contractor’s appeal), aff’d, Bonneville

Assoc. v. United States, 165 F.3d 1360 (Fed. Cir. 1999).

4. The “election doctrine” does not apply if the forum originally selected

lacked subject matter jurisdiction over the appeal. See Information Sys. &

Networks Corp. v. United States, 17 Cl. Ct. 527 (1989) (holding that the

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contractor’s untimely appeal to the Agriculture Board of Contract Appeals

did not preclude it from pursing a timely suit in the Claims Court).

5. Decisions of the boards of contract appeals are not binding upon the

COFC. See General Electric Co., Aerospace Group v. United States, 929

F.2d 679, 682 (Fed. Cir. 1991).

XV. CONCLUSION.

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FEDERAL LITIGATION COURSE

CHAPTER H

FEDERAL TORT CLAIMS ACT

TABLE OF CONTENTS

I. REFERENCES ...................................................................................................................... 2

A. AR 27-20, CLAIMS (8 FEBRUARY 2008)............................................................................... 2

B. AR 27-40, LITIGATION (19 SEPTEMBER 1994) ..................................................................... 2

C. DA PAMPHLET 27-162, CLAIMS PROCEDURES (21 MARCH 2008) ........................................ 2

D. FEDERAL TORT CLAIMS ACT HANDBOOK (1 MAY 2012). .................................................... 2

E. JA 241, FEDERAL TORT CLAIMS ACT (MAY 2000) .............................................................. 2

II. INTRODUCTION ................................................................................................................. 2

A. HISTORY AND PURPOSE OF THE FTCA ................................................................................. 2

B. GENERAL FEATURES OF THE FTCA ..................................................................................... 2

III. FTCA METHOD OF ANALYSIS. .................................................................................. 3

A. ADMINISTRATIVE PREREQUISITES TO SUIT ........................................................................... 3

B. FTCA SUBSTANTIVE ANALYSIS ........................................................................................... 3

IV. ADMINISTRATIVE PREREQUISITES TO SUIT ...................................................... 4

A. HAS THE CLAIMANT FILED A PROPER ADMINISTRATIVE CLAIM? ......................................... 4

B. HAS THE CLAIMANT COMPLIED WITH THE STATUTE OF LIMITATIONS? ................................ 6

C. IS THE PERSON FILING A PROPER CLAIMANT? ...................................................................... 9

V. THE FTCA SUBSTANTIVE ANALYSIS ........................................................................ 15

A. CHOICE OF LAW - WHAT LAW APPLIES? ............................................................................ 15

B. THE BASIS OF THE CLAIM - IS THERE A REMEDY FOR THE RELIEF BEING SOUGHT? ........... 15

C. STATUS OF THE TORTFEASOR - WHO CAUSED THE INJURY OR DAMAGE? ........................... 17

D. IS THERE A STATUTORY BAR TO LIABILITY? ...................................................................... 18

VI. AANNNNEEXX

A. FFTTCCAA CCOOMMPPLLAAIINNTT PPRROOCCEESSSS B. LLIITTIIGGAATTIIOONN FFLLOOWWCCHHAARRTTSS

C. CCOOMMPPLLAAIINNTT CCHHEECCKKLLIISSTT

H-2

Outline of Instruction

I. REFERENCES.

A. AR 27-20, Claims (8 February 2008)

B. AR 27-40, Litigation (19 September 1994)

C. DA Pamphlet 27-162, Claims Procedures (21 March 2008)

D. Federal Tort Claims Act Handbook (1 May 2012)

E. JA 241, Federal Tort Claims Act (May 2000)

II. INTRODUCTION

A. History and Purpose of the FTCA.

1. Before passage of the FTCA in 1946, the United States was immune from suit.

2. Redress for injuries caused by Government employees was available only through

private relief bills.

3. The FTCA was enacted to:

a. Provide a remedy for injuries caused by Government negligence; and

b. Relieve Congress of the burden of handling private relief bills.

B. General Features of the FTCA.

1. The FTCA permits recovery for personal injury, death, or property damage

caused by Government employees acting within the course and scope of employment. 28 U.S.C.

§ 1346(b).

2. The law of the state where the act or omission occurred determines the liability of

the United States. 28 U.S.C. § 2672.

3. Limited waiver of sovereign immunity.

a. Claimants must submit an administrative claim to the appropriate Government

agency for adjudication before filing suit in Federal court. 28 U.S.C. § 2675(a).

b. The FTCA has its own statute of limitations.

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(1) The claim must be submitted to the appropriate Government agency

within two years of accrual. 28 U.S.C. § 2401(b).

(2) The claimant must file a complaint in Federal court within six months

of the agency's denial of the claim. 28 U.S.C. §§ 2401(b), 2675(a).

(3) No period of limitation applies to a plaintiff if the agency fails to act

within six months after receiving the plaintiff’s claim. Pascale v. United States, 998 F.2d 186

(3rd Cir. 1993).

c. Suit cannot be brought for an amount greater than that submitted in the

administrative claim unless the claimant provides proof of:

(1) Newly discovered evidence not reasonably discoverable at the time of

presenting the claim to the agency; or

(2) Intervening facts relating to the amount claimed. 28 U.S.C. § 2675(b).

d. Plaintiffs may sue for negligence, but not, in most cases, for intentional torts.

28 U.S.C. § 2680.

e. Congress has precluded the recovery of punitive damages and prejudgment

interest. 28 U.S.C. § 2674.

f. Trial is by Federal judge without a jury. 28 U.S.C. § 2402.

g. Venue is appropriate only in the district where the plaintiff resides or where

the act or omission occurred. 28 U.S.C. § 1402(b).

h. Attorney fees are limited to 20% of an administrative settlement and 25% of a

judgment or compromise settlement. 28 U.S.C. § 2678.

III. FTCA METHOD OF ANALYSIS.

A. Administrative Prerequisites to Suit.

1. Has the Claimant Filed a Proper Administrative Claim?

2. Has the Claimant Complied with the Statute of Limitations?

3. Is the Person Filing a Proper Claimant?

B. FTCA Substantive Analysis.

1. What Law Applies?

2. Does the FTCA Provide a Remedy for the Relief Being Sought?

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3. Who Caused the Injury or Damage?

4. Is there a Statutory Bar to Liability?

IV. ADMINISTRATIVE PREREQUISITES TO SUIT.

A. Has the Claimant Filed a Proper Administrative Claim?

1. Written Notice and a Sum-Certain.

a. The claimant must make a written demand that provides sufficient notice to

the agency to allow it to investigate. There is a split of authority among courts regarding the

scope of the jurisdictional prerequisites necessary to hear claims brought pursuant to the FTCA.

The majority of courts have held that a plaintiff must give the applicable agency “minimal

notice,” which includes (1) a written statement sufficiently describing the injury to enable the

agency to begin its own investigation, and (2) a sum-certain damages claim. See, e.g., GAF

Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987). A minority of courts have imposed a

more stringent standard, holding that a plaintiff must comply with each of the regulatory

requirements found in 28 C.F.R. § 14.2, which include evidence of “the title or legal capacity of

the person signing ... accompanied by evidence of his authority to present a claim on behalf of

the claimant as agent, executor, administrator, parent, guardian, or other representative.” See,

e.g., Kanar v. United States, 118 F.3d 527, 528-29 (7th Cir.1997). The majority position has

been adopted in the Ninth Circuit, see Warren v. United States Dep’t of Interior Bureau of Land

Mgmt., 724 F.2d 776, 780 (9th Cir.1984) (en banc), the Third Circuit, see Tucker v. United

States Postal Serv., 676 F.2d 954, 959 (3d Cir.1982), the Fifth Circuit, see Adams v. United

States, 615 F.2d 284, 289 (5th Cir.) clarified, reh’g denied, 622 F.2d 197 (5th Cir.1980), the

Sixth Circuit, see Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981), and the Eleventh

Circuit, see Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983). The Eighth Circuit

Eighth Circuit is commonly cited in other circuits as an example of a court having adopted the

minority position.( see, e.g., Kanar, 118 F.3d at 529), but its status is in question. See, Mader v.

United States, 619 F.3d 996, 999 (8th Cir. 2010), reh’g en banc granted, (Dec. 14, 2010).

b. Suit may be brought only on those facts and theories of liability raised by the

administrative claim. Bembinista v. United States, 866 F.2d 493 (D.C. Cir. 1989).

c. The written claim must demand a sum certain in money. Gonzalez v. United

States, 284 F.3d 281, 287 (1st Cir.2002); (Failure to specify a sum certain is a defect that

deprives the court of subject matter jurisdiction over the action); Dalrymple v. United States, 460

F.3d 1318, 1324 (11th Cir. 2006); Suarez v. United States, 22 F.3d 1064 (11th Cir. 1994) ;

Kokaras v. United States, 980 F.2d 20 (1st Cir. 1992), cert. denied, 501 U. S.819 (1993); Bradley

v. United States Veterans’ Administration, 951 F.2d 268 (10th Cir. 1991); Burns v. United

States, 764 F.2d 722 (9th Cir. 1985).

d. Claims asking for an approximate number of dollars (e.g., “approximately

$1,000,000”) have been considered sufficient, but the recovery has been limited to the stated

amount. Corte-Real v. United States, 949 F.2d 484 (1st Cir. 1991).

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e. Suit cannot be brought for an amount greater than that submitted in the

administrative claim unless the claimant provides proof of (1) newly discovered evidence not

reasonably discoverable at the time of presenting the claim to the agency, or (2) intervening facts

relating to the amount of the claim. Low v. United States, 795 F.2d 466 (5th Cir. 1986). See

also, Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002); Reilly v. United

States, 863 F.2d 149, 173 (1st Cir. 1988).

2. Signed by the Claimant.

a. The claimant or the claimant’s representative must sign the written notice

demanding a sum certain.

b. Proof of agent signatory authority may or may not be required. See Conn v.

United States, 867 F.2d 916 (6th Cir. 1989) (No); Department of Justice Regulations, 28 C.F.R.

Part 14 (Yes).

c. If a derivative claim is intended to be presented, a separate, signed claim must

be received. Manko v. United States, 830 F.2d 831, 840 (8th Cir. 1987); Rucker v. Department

of Labor, 798 F.2d 891 (6th Cir. 1986); contra, Avila v. Immigration and Naturalization Service,

731 F.2d 616 (9th Cir. 1984) (holding untimely amendment “related back” because father's name

on original claim for incompetent son put government on notice of father as potential additional

claimant).

d. Similarly, reference in a claim to injuries suffered by other persons does not

suffice as a claim on behalf of any person other than the signatory. Montoya v. United States,

841 F.2d 102 (5th Cir. 1988).

3. Submitted to the Appropriate Federal Agency.

a. The written notice demanding a sum certain and signed by the claimant or his

authorized representative must be submitted to the appropriate agency.

b. An SF-95 is the standard form on which claims are usually submitted;

however there is no legal requirement that the form be used. A claim is still valid provided that

it is in writing, demands a sum certain, is signed by the claimant or his authorized representative,

and is submitted to the appropriate agency.

the claim.

c. The “appropriate agency” is the Federal agency whose activities gave rise to

d. If a claim is submitted to the wrong agency, the Attorney General’s

regulations require the receiving agency to transfer the claim to the appropriate agency and to

notify the claimant of the transfer. 28 C.F.R. § 14.2(b)(1).

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e. The failure of an agency to “transfer . . . [a claim] forthwith to the appropriate

agency” may, in effect, extend the statute of limitations or excuse presentment to the

“appropriate agency.” Bukala v. United States, 854 F.2d 201 (7th Cir. 1988); see also, Hart v.

Dep't of Labor ex rel. U.S., 116 F.3d 1338, 1341 (10th Cir. 1997 (holding that “if the agency

fails promptly to comply with the transfer regulation and, as a result, a timely filed, but

misdirected claim does not reach the proper agency within the limitations period, the claim may

be considered timely filed.”)

B. Has the Claimant Complied with the Statute of Limitations?

1. The purpose of the FTCA's statute of limitations is to require the reasonably

diligent presentation of tort claims against the government. Ryan v. United States, 534 F.3d 828

(8th Cir. 2008) (Involving twins switched at birth).

2. The written notice demanding a sum certain signed by the claimant or the

claimant's representative must be presented to the appropriate Federal agency within two years of

when the claim first accrued. Roman-Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010)

(compliance with the FTCA’s temporal deadlines is both mandatory and jurisdictional).

3. 28 U.S.C. § 2401(b) provides:

“A tort claim against the United States shall be forever barred

unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues or unless action is begun

within six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim by the agency

to which it was presented.”

4. The statute of limitations is an affirmative defense. Schmidt v United States, 933

F2d 639, 640 (8th Cir. 1991) (citing Rule 8(c), Fed R Civ P).

5. When does a claim "accrue"?

or damage.

a. Normally, in a tort cause of action, accrual occurs at the time of injury, loss,

b. Federal, not state, law determines accrual. Vega-Velez v United States, 800

F2d 288(1st Cir. 1986); Johnson v. Smithsonian Inst., 189 F.3d 180 (2d Cir. 1999); Miller v.

Philadelphia Geriatric Center, 463 F.3d 266 (3d Cir. 2006); Goodhand v United States, 40 F.3d

209 (7th Cir. 1994); Radman v United States, 752 F2d 343 (8th Cir. 1985); Motley v. United

States, 295 F.3d 820 (8th Cir. 2002).

c. Discovery Rule: In medical malpractice cases under the FTCA, the Supreme

Court has held that a claim accrues when the claimant knew or should have known of the injury

and the cause of the injury. United States v. Kubrick, 444 U.S. 111 (1979).

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d. The Kubrick accrual standard is an objective test. The claim “accrues” and

the statute begins to run “when the facts would lead a reasonable person (a) to conclude that

there was a causal connection between the treatment and injury, or (b) to seek professional

advice, and then with that advice, to conclude that there was a causal connection between the

treatment and injury.” MacMillan v. United States, 46 F.3d 377 (5th Cir. 1995). See also,

Johnson v. United States, 460 F.3d 616, 622 (5th Cir. 2006) (“MacMillan imposed a duty to seek

advice once this probable cause was revealed to the plaintiff by the doctor.”)

e. Under Kubrick, the courts differ on what “cause” the plaintiff must know to

start the statute of limitations running.

(1) Some courts of appeal have held that knowledge of the “physical cause”

of the injury is sufficient to start the statute of limitations running.

(a) Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987)

(Under the FTCA, a claim accrues when the plaintiff “has discovered both his injury and its

cause,” regardless of whether the plaintiff knows the injury was negligently inflicted.) (quoted in

Webb v. United States, 535 F. Supp. 2d 54, 58 (D.D.C. 2008));

(b) Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.), cert. denied,

475 U.S. 1108 (1986). (“We agree with those Courts of Appeals that have held that a claim

accrues when the injured party learns of the injury and its immediate cause. The rationale of the

discovery rule as announced in Kubrick is that the statute of limitations begins to run on the first

date that the injured party possesses sufficient critical facts to put him on notice that a wrong has

been committed and that he need investigate to determine whether he is entitled to redress.”)

(c) Gould v. United States Dept. of HHS, 905 F.2d 738 (4th Cir.

1990), cert. denied, 498 U.S. 1025 (1991) (holding that a cause of action accrues when plaintiffs

learned both of the existence and cause of the injury, not when plaintiffs also learned the legal

identity of the alleged tort-feasors as federal employees).

(d) Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984)

(“Discovery of the cause of one's injury, however, does not mean knowing who is responsible for

it. The ‘cause’ is known when the immediate physical cause of the injury is discovered.”)

(e) “[A] medical malpractice claim under the FTCA accrues when the

plaintiff is, or in the exercise of reasonable diligence should be, aware of both [his] injury and its

connection with some act of the defendant.” McCullough v. United States, 607 F.3d 1355, 1359

(11th Cir.2010) (quoting Price v. United States, 775 F.2d 1491, 1494 (11th Cir.1985)).

(2) Other courts have held that the statute of limitations does not begin to

run until the plaintiff knows or should know of the Government’s role in causing the injury.

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(a) Rakes v. United States, 442 F.3d 7, 19-20 (1st Cir. 2006) (“a claim

does not accrue under the FTCA until a person in the plaintiff's position, that is, one who knew

or should have known as much as the plaintiff knew or should have known, would believe that

he had been injured and would know ‘sufficient facts to permit a reasonable person to believe

that there is a causal connection between the government and [the] injury.’”) (quoting Skwira v.

United States, 344 F.3d 64, 78 (1st Cir. 2003)).

(b) Nemmers v. United States, 870 F.2d 426, 631 (7th Cir. 1989).

((under Kubrick, the proper test for determining when the statute of limitations begins to run on a

plaintiff’s claim is the objective test of whether, on the basis of professional advice, a reasonable

person in the plaintiff’s position would have known enough to identify negligent treatment).

(c) Drazan v. United States, 762 F.2d 56 (7th Cir. 1985) (“When there

are two causes of an injury, and only one is the government, the knowledge that is required to set

the statute of limitations running is knowledge of the government cause, not just of the other

cause.”).

(3) Some courts have applied the Kubrick discovery rule in circumstances in

which the injury, its cause, or both are latent. Donahue v. United States, 634 F.3d 615, 623 (1st

Cir. 2011); Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1270–71 (10th Cir.2002);

Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 934–35 (8th Cir.2002); Díaz v. United States,

165 F.3d 1337, 1339 (11th Cir.1999); Kronisch v. United States, 150 F.3d 112, 121 (2d

Cir.1998).

6. Tolling the statute of limitations.

a. Equitable Tolling - Historical Background.

(1) The statute of limitations was considered one of the conditions placed

upon the waiver of sovereign immunity.

(2) Equitable considerations, estoppel, and waiver did not generally affect

the running of the limitations period.

(3) In 1990, however, the Supreme Court abandoned the jurisdictional

rationale supporting statutes of limitation in favor of the United States. Irwin v. Veterans’

Admin., 498 U.S. 89 (1990) (holding in a Title VII case that the same rebuttable presumption of

equitable tolling applicable to suits against private defendants should also apply to suits against

the United States).

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b. Equitable tolling applies in limited circumstances against the United States

under the FTCA. Gonzalez v. United States, 284 F.3d 281, 291, (1st Cir. 2002) (“The doctrine

of equitable tolling suspends the running of the statute of limitations if a plaintiff, in the exercise

of reasonable diligence, could not have discovered information essential to the suit.”); Valdez ex

rel. Donely v. United States, 518 F.3d 173, 182 (2d Cir. 2008)(Equitable tolling permits a

plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to

obtain vital information concerning his claim’s existence.); Lambert v. United States, 44 F.3d

296, 299 (5th Cir. 1995) (holding that equitable tolling will not apply when the plaintiff has an

adequate remedy to avoid the statute of limitations or has failed to act diligently).

c. Neither infancy nor incompetence will postpone the accrual of a claim.

Leonhard v. United States, 633 F.2d 599, 624 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981)

(“It is firmly established that the two-year period is not tolled by a claimant's minority.”); see

also Kach v. Hose, 589 F.3d 626, 637 (3d Cir. 2009); Barren v. United States, 839 F.2d 987 (3d

Cir.), cert. denied, 488 U.S. 827 (1988) (incompetence will not postpone accrual). See also

Patterson v. United States, 451 F.3d 268 (1st Cir. 2006) (discussing infancy and incompetence in

FTCA cases).

d. The Servicemembers Civil Relief Act (formerly Soldiers’ and Sailors’ Civil

Relief Act) will toll the claims of service members regardless of whether their ability to pursue

the claim has been impaired by military service. Kerstetter v. United States, 57 F.3d 362, 369

(4th Cir. 1995); Mason v. Texaco, Inc., 862 F.2d 242 (10th Cir. 1988) cert. denied, 504 U.S. 910

(1992).

7. The second prong of the statute of limitations requires timely filing of a lawsuit

after the agency has finally denied the claim.

a. After filing the administrative claim, a claimant cannot file suit until the

agency has had the claim for six months. The court lacks subject matter jurisdiction if the

complaint is filed within six months of the submission of the claim and before the agency makes

a final denial. 28 U.S.C. § 2401(b); 28 C.F.R. § 14.9(b); McNeil v. United States, 508 U.S. 106

(1993).

b. After six months of receipt of the claim, if the agency has not settled or denied

it, the claimant may deem the claim denied and file suit in Federal court. 28 U.S.C. § 2675(a).

The six-month limitation period does not begin to run until the agency has denied the claim. Life

Partners Inc. v. United States, No. 10-50354, 2011 WL 3572003 (5th Cir. Aug. 16, 2011); Parker

v. United States, 935 F.2d 176 (9th Cir. 1991).

c. If the agency notifies the claimant by certified or registered mail of its

decision to deny the claim, the claimant must file suit within six months of the date of mailing of

the letter, or the action will be forever barred. 28 U.S.C. § 2401(b); 28 C.F.R. § 14.9(b);

Lambert v. United States, 44 F.3d 296 (5th Cir. 1995); Parker v. United States, 935 F.2d 176 (9th

Cir. 1991).

C. Is the Person Filing a Proper Claimant?

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1. Proper Claimants.

a. Claims for personal injury or for damage to or loss of property may be

presented by the injured person or property owner or their authorized agent or representative. 28

C.F.R. § 14.3(a) and (b).

b. Wrongful death claims may be presented by the executor or administrator of

the decedent’s estate, or by any other person legally entitled to assert a claim under applicable

state law. 28 C.F.R. § 14.3(c); Knapp v. United States, 844 F.2d 376 (6th Cir. 1988); Free v.

United States, 885 F.2d 840 (11th Cir. 1989).

c. A claim for loss wholly compensated by an insurer with the rights of a

subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer

with the rights of a subrogee may be presented by the parties individually as their respective

interests appear, or jointly. 28 C.F.R. § 14.3(d).

2. Improper Claimants.

a. Certain categories of claimants are precluded from recovering under the

FTCA for injuries sustained under certain circumstances.

b. Federal civilian employees.

(1) The exclusive remedy for Federal civilian employees injured during

their employment is the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8116(c).

Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010)

(2) “FECA’s exclusive liability provision ... was designed to protect the

Government from suits under statutes, such as the Federal Tort Claims Act, that had been

enacted to waive the Government's sovereign immunity. In enacting this provision, Congress

adopted the principal compromise-the “quid pro quo”-commonly found in workers'

compensation legislation: employees are guaranteed the right to receive immediate, fixed

benefits, regardless of fault and without need for litigation, but in return they lose the right to sue

the Government.” Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983)

(quoted in Mathirampuzha v. Potter, 548 F.3d 70, 80-81 (2d Cir. 2008)).

(3) If the claimant is a Federal employee and there is a “substantial

question” whether FECA applies, the question must be resolved by the Secretary of Labor before

the FTCA claim will be adjudicated. Figueroa v. United States, 7 F.3d 1405 (9th Cir. 1993),

cert. denied, 511 U.S. 1030 (1994); Moe v. United States, 326 F.3d 1065, 1068 (9th Cir. 2003);

Griffin v. United States, 703 F.2d 321 (8th Cir. 1983).

(a) The FTCA statute of limitations is not tolled while the

Secretary of Labor considers the FECA question.

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(b) Decisions by the Secretary of Labor as to whether FECA

covers the alleged injury, or on the amount of compensation, if any, to be awarded, are final.

Review of any kind by a court is absolutely barred. 5 U.S.C. § 8128(b). Tarver v. United States,

25 F.3d 900, 903 (10th Cir. 1994).

(4) FECA coverage extends to all injuries within the work “premises.”

Woodruff v. Dep’t of Labor, 954 F.2d 634, 640 (11th Cir.), reh’g denied, 961 F.2d 224 (1992).

(5) Employees of nonappropriated funds are covered by the

Longshoreman’s and Harbor Worker's Compensation Act. 33 U.S.C. §§ 901-950, 8171.

c. Service members.

(1) Service members who are injured ‘incident to service’ cannot maintain

an action against the United States under the FTCA. Feres v. United States, 340 U.S. 135

(1950).

(2) The rationales for the Feres doctrine are as follows:

(a) The relationship between the Government and members of its armed

forces is “distinctively Federal in character” and should not be affected by state law;

(b) Congress already provides a system of compensation for injuries

and/or death for members of the armed services; and,

(c) There would be an adverse impact upon discipline if Soldiers could

sue for command decisions made and orders given in the course of duty. United States v.

Brown, 348 U.S. 110 (1954).

(d) Finally, but most importantly, the Supreme Court has explained that

“Feres and its progeny indicate that suits brought by service members against the Government

for injuries incurred incident to service are barred by the Feres doctrine because they are the

‘type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military

affairs at the expense of military discipline and effectiveness.’” Miller v. United States, 42 F.3d

297, 303 (5th Cir. 1995) (quoting United States v. Johnson, 481 U.S 681, 690 (1987)) (emphasis

in original)); see also United States v. Shearer, 473 U.S. 52, 59 (1985)

(3) All rationales need not be presented for Feres to apply.

(4) “[W]hether or not the circumstances of a case implicate the rationales

for the Feres doctrine, the doctrine bars any damage suit against the United States for injuries

incurred incident to military service.” Verma v. United States, 19 F.3d 646 (D.C. Cir. 1994)

(Feres bars both personal injury and property damage claims).

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(a) “In determining whether a particular claim is Feres barred, this court

applies the three-part ‘incident to service’ test discussed in Verma v. United States, 19 F.3d 646,

648 (D.C.Cir.1994) (per curiam). We use three factors - the injured service member’s duty

status, the site of the injury and the nature of the activity engaged in by the service member at the

time of his injury - to determine whether a member of the military may bring a claim against the

government under the FTCA.” Schnitzer v. Harvey, 389 F.3d 200, 203 (D.C. Cir. 2004)

(quoting Verma, 19 F.3d at 646).

(b) This approach is consistent with other circuits. See, e.g., Richards v.

United States, 176 F.3d 652, 655 (3rd Cir.1999); Speigner v. Alexander, 248 F.3d 1292, 1298

(11th Cir.2001); Kelly v. Panama Canal Comm’n, 26 F.3d 597, 600 (5th Cir. 1994).

(5) Factors for determining “incident to service.” Courts typically consider

several factors, with no one factor being dispositive.

(a) The first factor considered is the nature of the plaintiff's activity at

the time of the injury. If the plaintiff was performing military duties or enjoying a privilege or

benefit of military service at the time of the injury, the claim will usually be barred. United

States v. Johnson, 481 U.S. 681 (1987); Coltrain v. United States, 999 F.2d 542 (9th Cir. 1993)

(unpublished disposition).

(i) An injury to a service member on post or off post but while the

service member is engaged in military duty is incident to service and Feres barred. Kohn v.

United States, 680 F. 2d 922, 925 (2d Cir. 1982).

(ii) Claims for injuries incurred during medical treatment in a

military medical treatment facility (MTF) are Feres barred. Jones v. United States, 112 F.3d 299

(7th Cir. 1997) (soldier’s claim for improper surgery at Letterman AMC while he was at

Olympic tryout is Feres barred); Hayes v. United States, 44 F.3d 377 (5th Cir. 1995), cert.

denied, 516 U.S. 814 (1995) (finding death from medical malpractice during elective surgery is

Feres barred); Alsip v. Ferrell, 39 F.3d 1191 (10th Cir. 1994) (unreported disposition) (medical

treatment in MTF invokes Feres); Coltrain v. United States, 999 F.2d 542 (9th Cir. 1993)

(unpublished disposition); Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987).

(iii) Claims for injuries incurred while using recreational equipment

owned by the Government are usually barred. Bon v. United States, 802 F.2d 1092 (9th Cir.

1986) (MWR rental boat a benefit of service); Walls v. United States, 832 F.2d 93 (7th Cir.

1987); cf. Kelly v. Panama Canal Comm’n, 26 F.3d 597 (5th Cir. 1994), aff’d and reh’g denied,

66 F.3d 323 (1995) (unpublished disposition).

(iv) Claims for injuries incurred during transport as space available

passengers are barred. Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979), cert. denied,

444 U.S. 1044 (1980).

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(v) Claims for injuries caused in on post housing are generally

barred. Feres, 340 U.S. 135 (1950) (soldier’s suit for injuries as a result of a barracks fire is not

cognizable); Preferred Insurance Co. v. United States, 222 F. 2d 942 (9th Cir.), cert. denied, 350

U.S. 837 (1955) (recovery denied for subrogation claims of insurance companies who paid for

damage to mobile homes on military base); but see Elliot v. United States, 13 F.3d 1555 (11th

Cir.), vacated, 28 F. 3d 1076, aff’d per curiam, 37 F.3d 617 (1994) (Soldier on leave in on post

quarters not Feres barred for injuries incurred when heater in quarters malfunctioned).

(b) If the service member was not engaged in a military activity or

enjoying a benefit of service at the time of his or her injury, courts usually consider the following

factors together: plaintiff’s location and duty status.

(i) Location.

(a) If the incident occurs off post while off duty, Feres generally

will not bar the claim. Brooks v. United States, 337 U.S. 49 (1949) (on leave); Kelly v. Panama

Canal Comm’n, 26 F.3d 597 (5th Cir. 1994), aff’d and reh’g denied, 66 F.3d 323 (1995)

(unpublished disposition); Pierce v. United States, 813 F.2d 349 (11th Cir. 1987) (off-duty);

Green v. Hall, 8 F.3d 695 (9th Cir. 1993), cert. denied, 513 U.S. 809 (1994).

(b) If off-duty but on the installation, Feres will bar the claim.

Warner v. United States, 720 F.2d 837 (5th Cir. 1983) (service member was given the day off

and was on personal business on post at the time of the injury); Flowers v. United States, 764

F.2d 759 (11th Cir. 1985); Shaw v. United States, 854 F.2d 360 (10th Cir. 1988); Morey v.

United States, 903 F.2d 880 (1st Cir. 1990); McAllister v. United States, 942 F.2d 1473 (9th Cir.

1991), cert. denied, 502 U.S. 1092 (1992); Thompson v. United States, 8 F.3d 30 (9th Cir.), cert.

denied, 510 U.S. 1191 (1994) (unpublished disposition).

(ii) Duty status.

(a) If service member is off duty (pass) or on chargeable leave,

the majority of courts will look at the plaintiff’s activity and location at the time of injuries to

determine if they are incident to service and therefore Feres barred. (See analysis under

“location” above).

(b) A minority view is that Feres will not bar the claim if the

service member is on chargeable leave (more than merely off duty), regardless of location.

Brooks v. United States, 337 U.S. 49 (1949) (off-post); Elliott v. United States, 13 F.3d 1555,

(11th Cir.), vacated, reh’g en banc granted, 28 F.3d 1076, aff’d per curiam, 37 F.3d 617 (1994)

(on-post).

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(6) If analysis of the three factors would indicate the injuries did not occur

“incident to service,” but litigating the case would still involve the court in military matters and

carry the potential to adversely effect discipline, Feres may still bar the claim. United States v.

Shearer, 473 U.S. 52 (1985); Sanchez v. United States, 878 F.2d 633 (2d Cir. 1989).

(7) Feres bar also extends to:

(a) Commissioned officers of the Public Health Service.

(b) National Guardsmen when engaged in Guard activities.

(c) Third party claims for contribution and indemnity arising out of

injuries sustained by a plaintiff whose direct action against the United States is barred by

Feres.

(d) Foreign military members in the United States for training or

service with United States forces.

(e) Service academy cadets.

(8) Feres bars not only the direct action by the service member, but also

any derivative action arising out of the service member’s injuries. Stephenson v. Stone, 21 F.3d

159 (7th Cir. 1994); Scales v. United States, 685 F.2d 970, reh’g denied, 691 F.2d 502 (5th Cir.

1982), cert. denied, 460 U.S. 1082 (1983); Persons v. United States, 925 F.2d 292 (9th Cir.

1991).

(9) Feres does not bar an infant plaintiff's suit based upon negligent

medical treatment of his then pregnant active duty mother. Ortiz v. U.S. ex rel. Evans Army

Cmty. Hosp., 786 F.3d 817, 818 (10th Cir. 2015) (claim arising from child’s in utero brain

injury were derivative of Air Force officer’s injury and thus Feres barred); Del Rio v. United

States, 833 F.2d 282 (11th Cir. 1987); Romero v. United States, 954 F.2d 223 (4th Cir. 1992).

This is the prevailing view. There are some cases contra. Scales v. United States, 685 F.2d

502, reh’g denied, 691 F.2d (5th Cir. 1982), cert. denied, 460 U.S. 1082 (1983).

(10) Family members of service members. Family members of active duty

service members who are personally injured by Government negligence are not barred by Feres

even if their injuries are sustained while using privileges or benefits available to them because of

their sponsors' status. Portis v. United States, 483 F.2d 670 (4th Cir. 1973). The service member

can also recover on derivative claims arising out of injuries to dependents. Phillips v. United

States, 508 F. Supp. 544 (D.S.C. 1981).

(11) Veterans/retirees.

(a) If the tort occurs after discharge, Feres will not bar the claim.

(b) The issue is often whether the alleged tort is separate and distinct

from any acts occurring before discharge. United States v. Stanley, 483 U.S. 669 (1987) (no

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post-discharge injury); United States v. Brown, 348 U.S. 110 (1954) (post-discharge injury);

M.M.H. v. United States, 966 F.2d 285 (7th Cir. 1992).

V. THE FTCA SUBSTANTIVE ANALYSIS.

A. Choice of Law - What Law Applies?

1. The FTCA provides that the law of the state where the act or omission occurred

determines the liability of the United States. 28 U.S.C. § 1346(b).

2. The “law of the state” is the whole law, including the state's choice of law rules.

Richards v. United States, 369 U.S. 1 (1962).

B. The Basis of the Claim - Is There a Remedy for the Relief Being Sought?

1. Cause of Action.

a. The substantive tort law of the state determines whether the plaintiff has a

valid cause of action. Henderson v. United States, 846 F.2d 1233 (9th Cir. 1988). See also

United States v. Olson 546 U.S. 43 (2005) (FTCA waives federal government’s immunity only

where local law would make a private person liable in tort, not where local law would make a

state or municipal entity liable, even when uniquely governmental functions are at issue.)

b. If the state law does not permit recovery under the circumstances, the United

States will not be liable.

(1) No liability for failure to warn when there is no duty to warn under state

law. Cole v. United States, 846 F.2d 1290 (11th Cir.), cert. denied, 488 U.S. 966 (1988).

(2) No liability for serving alcohol to soldier when there is no dram shop

liability under state law. Corrigan v. United States, 815 F.2d 954 (4th Cir. 1987), cert. denied,

484 U.S. 926 (1987).

(3) Proximate cause limitations in state law applicable to FTCA suit.

Skipper v. United States, 1 F.3d 349 (5th Cir. 1993), cert. denied, 510 U.S. 1178 (1994).

(4) No liability for false arrest unless provided for in state law. Bernard v.

United States, 25 F.3d 98 (2d Cir. 1994).

(5) No liability under a state’s res ipsa loquitur doctrine if plaintiff cannot

prove shared responsibility. Creekmore v. United States, 905 F.2d 1508 (11th Cir. 1990).

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c. The United States may claim the benefit of state limitations on the liability of

private parties.

(1) State recreational use statute immunized United States from liability for

injuries sustained by recreational user of Federal land. Mansion v. United States, 945 F.2d 1115

(9th Cir. 1991); Hegg v. United States, 817 F.2d 1328 (8th Cir. 1987). See also Lingua v. United

States, 801 F.Supp.2d 320 (M.D.Pa. 2011) (Pennsylvania Recreation Use of Land and Water Act

immunized United States from liability in national recreation area.)

(2) Alaska's Good Samaritan statute immunized the United States from

liability from alleged negligence during rescue at sea. Bunting v. United States, 884 F.2d 1143

(9th Cir. 1989).

(3) State limitation on non-economic damages in professional negligence

cases applied to the United States. Knowles v. United States, 29 F.3d 1261 (8th Cir. 1994),

remanded, 91 F.3d 1147 (8th Cir. 1996), reh’g denied, 1996 U.S. App. LEXIS 29706; Taylor v.

United States, 821 F.2d 1428 (9th Cir.), cert. denied, 485 U.S. 992 (1988); Starns v. United

States, 923 F.2d 34 (4th Cir.), cert. denied, 502 U.S. 809 (1991).

d. The FTCA does not waive sovereign immunity for strict liability. Even if

state law would permit recovery under a strict liability theory, the United States is immune.

Laird v. Nelms, 406 U.S. 797 (1972).

e. The waiver of sovereign immunity for state negligence actions does not waive

the United States’ immunity for Federal constitutional torts. Castro v. United States, 775 F.2d

399 (1st Cir. 1985) (abrogated on other grounds); Boda v. United States, 698 F.2d 1174 (11th

Cir. 1983).

2. Relief Sought.

FTCA.

a. Relief is limited to money damages. Equitable relief is not available under the

b. Amount of recovery is limited to the amount claimed in the administrative

claim unless "the increased amount is based upon newly discovered evidence not reasonably

discoverable at the time of presenting the claim to the Federal agency, or upon allegation and

proof of intervening facts relating to the amount of the claim." 28 U.S.C. § 2675(b).

(1) When the new evidence or intervening facts only refine or go to the

precision of the plaintiff's prognosis, an increased damage award is not appropriate. Low v.

United States, 795 F.2d 466 (5th Cir. 1986). See also Tookes v. United States, 811 F.Supp.2d

322 (D.D.C. 2011) (plaintiff should have known injury stemming from alleged false

imprisonment could prevent her from returning to work.)

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(2) A reasonably based change in expectation as to the severity and

permanence of the injuries will support an award greater than claimed in the administrative

claim. Spivey v. United States, 912 F.2d 80 (4th Cir. 1990); Cole v. United States, 861 F.2d

1261 (11th Cir. 1988).

c. Punitive damages are not payable under the FTCA. 28 U.S.C. § 2674.

C. Status of the Tortfeasor - Who Caused the Injury or Damage?

1. The negligent actor must be a Federal employee acting within the course and

scope of Federal employment. 28 U.S.C. § 2679(b)(1).

2. Federal law determines whether a given individual is a Federal employee.

a. The general test used by the courts to determine if an individual is an

employee of the Government is the "right to control the details of the day-to-day performance of

duty" analysis set forth in Restatement (Second) of Agency § 220 (1958).

b. Examples.

(1) Local Federally funded community action agency is not a Federal

enterprise. United States v. Orleans, 425 U.S. 807 (1976).

(2) Local jail contracted to temporarily house Federal prisoners; jail

employees were not “Federal employees” under the FTCA. Logue v. United States, 412 U.S.

521 (1973).

(3) Private physicians designated as Aviation Medical Examiners by the

Federal Aviation Administration, are not Federal employees. Leone v. United States, 910 F.2d

46 (2d Cir.), cert. denied, 499 U.S. 905 (1991).

c. Independent contractors.

(1) Not Federal employees. 28 U.S.C. § 2671. Williams v. United States,

50 F.3d 299 (4th Cir. 1995) (U.S. Government was not liable for actions of contract janitorial

service employees in building leased by United States). See also the ten-factor analysis used in

Peacock v. United States, 597 F.3d 654 (5th Cir. 2012).

(2) Although independent contractors are specifically excluded from the

statutory definition of Federal employees, the Government may be liable if the United States has

authority “to control the detailed physical performance of the contractor” and supervise its day-

to-day operations. Bird v. United States, 949 F.2d 1079 (10th Cir. 1991) (nurse anesthetist hired

from placement service to serve in Federal hospital was a Federal employee).

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3. The Federal employee must be acting within the course and scope of Federal

employment.

a. The applicable state tort law determines whether the employee was acting

within the course and scope of Federal employment. Williams v. United States, 350 U.S. 857

(1955); Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995), rev’ing, 45 F.3d 598 (2d Cir. 1995).

b. Differences in the laws of the various states will produce different results in

factually similar cases.

(1) Violation of base regulations requiring residents to control their dogs

was not within the scope of employment; therefore, the United States could not be held liable for

a dog bite. Chancellor v. United States, 1 F.3d 438 (6th Cir. 1993); Piper v. United States, 887

F.2d 861 (8th Cir. 1989); Nelson v. United States, 838 F.2d 1280 (D.C. Cir. 1988).

(2) Violation of base regulations requiring residents to control their dogs

was within the scope of employment; therefore, the United States could be held liable for a dog

bite. Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982).

c. Statutory Immunity for Individuals. The Federal Employees Liability Reform

and Tort Compensation Act of 1988 (Westfall Act) amended the FTCA and provides absolute

immunity from state and common law torts for Federal employees acting within the scope of

employment.

(1) The FTCA is the exclusive remedy for state law torts committed by

Federal employees within the scope of employment. Wright v. Park, 5 F.3d 586 (1st Cir. 1993).

(2) The Westfall Act (the Act) applies only to state and common law torts.

(3) Before the Act applies, the U.S. Attorney must certify that the Federal

employee was acting within the scope of employment.

(4) After certification, the suit is removed to Federal court, the United States

is substituted as the defendant, and the suit becomes an FTCA cause of action against the

Government. Dillon v. State of Mississippi Military Dep’t, 23 F.3d 915 (5th Cir. 1994).

(5) Attorney General certification/motion to substitute. U.S. Attorney's

decision is subject to review. DeMartinez v. Lamagno, 515 U.S. 417 (1995).

D. Is There a Statutory Bar to Liability?

1. Even if the claimant clears all of the foregoing obstacles, the claim may still be

barred by one of the 13 exceptions listed in the FTCA. 28 U.S.C. § 2680.

2. Discretionary function. 28 U.S.C. § 2680(a).

a. The statute actually sets forth two separate exceptions under this section.

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(1) "Due care". Sovereign immunity is not waived for any claim based

upon an act or omission of a Federal employee exercising due care in the execution of a statute

or regulation, whether or not the statute or regulation is valid.

(2) "Discretionary function." Sovereign immunity is not waived for any

claim based upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a Federal agency or employee, whether or not the

discretion involved is abused.

b. Provision 1. Due care exclusion of liability applies primarily to Government

employees in the execution of statutes or regulations.

(1) If a statute or regulation mandates particular conduct, and the employee

follows the mandate, the conduct is deemed in furtherance of U.S. policy and the Government

will not be liable. United States v. Gaubert, 499 U.S. 315 (1991), citing, Dalehite v. United

States, 346 U.S. 15 (1953).

(2) Federal law determines whether the Government employee exercised

due care in the execution of the Federal statute or regulation. Hydrogen Technology Corp. v.

United States, 831 F.2d 1155 (1st Cir. 1987), cert. denied, 486 U.S. 1022 (1988). Contra Downs

v. United States, 522 F.2d 990 (6th Cir. 1975).

applies:

c. Provision 2. Discretionary function two-part test. Before the exception

(1) The act must involve an element of judgment or choice. Berkovitz v.

United States, 486 U.S. 531 (1988).

(2) The judgment must be the kind that the discretionary function exception

was designed to shield.

(3) The exception applies even when decisions are negligently made or

discretion is abused.

3. Intentional torts exception. 28 U.S.C. § 2680(h).

a. The FTCA does not waive sovereign immunity for: assault and battery; false

arrest; libel; slander; misrepresentation; and interference with contract rights.

b. Exception to the assault and battery and false arrest exceptions.

(1) FTCA does waive sovereign immunity for assault, battery, and false

arrest when committed by Federal law enforcement officers.

(2) “Federal law enforcement officer” is defined as an officer of the United

States "who is empowered by law to execute searches, to seize evidence, or to make arrests for

violation of Federal law."

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(a) Military police are Federal law enforcement officers for

FTCA purposes. Kennedy v. United States, 585 F. Supp. 1119 (D.S.C. 1984).

(b) Parole officers are not Federal law enforcement officers.

Wilson v. United States, 959 F.2d 12 (2d Cir. 1992).

(c) Post Exchange security guards are not Federal law

enforcement officers. Solomon v. United States, 559 F.2d 309 (5th Cir. 1977).

c. All intentional torts are not barred as a matter of law.

(1) The intentional tort exception will apply only if the conduct relied on to

establish the alleged tort is substantially the same as that required to establish one of the

specifically barred torts. Sheehan v. United States, 896 F.2d 1168, modified, 917 F.2d 424 (9th

Cir. 1990).

(2) Intentional infliction of emotional distress is not barred by the

intentional torts exception. Truman v. United States, 26 F.3d 592 (5th Cir. 1994); Santiago-

Ramirez v. Secretary of Dep’t of Defense, 984 F.2d 16 (1st Cir. 1993); Kohn v. United States,

680 F.2d 922 (2d Cir. 1982); Gross v. United States, 676 F.2d 295 (8th Cir. 1982); Sheehan v.

United States, 896 F.2d 1168 (9th Cir. 1990), modified, 917 F.2d 424 (9th Cir. 1990).

4. Combatant activities exception. 28 U.S.C. § 2680 (j).

a. The United States is not liable for any claim arising out of the combatant

activities of the military or naval forces, or the Coast Guard, during time of war.

b. There need be no formal declaration of war for the exception to apply. Koohi

v. United States, 976 F.2d 1328 (9th Cir. 1992), cert. denied; 508 U.S. 960 (1993); Rotko v.

Abrams, 338 F. Supp. 46 (D. Conn. 1971), aff’d, 455 F.2d 992 (2d Cir. 1972); Morrison v.

United States, 316 F. Supp. 78 (M.D. Ga. 1970).

5. Overseas exception. 28 U.S.C. § 2680 (k).

a. Congress did not want the liability of the United States determined by the

laws of a foreign country. Therefore, claimants who have been injured by the acts or omissions

of Federal employees in foreign countries have no judicial remedy against the United States.

b. If the injury occurred in a foreign country but the negligent act or omission

occurred in the United States, the claim is not barred. In re Paris Air Crash, 399 F. Supp. 732

(C.D. Cal. 1975).

c. If the land in question is outside the U.S. but not subject to the sovereignty of

another nation, the claim is still barred. Smith v. United States, 507 U.S. 197 (1993)

(Antarctica).

I-1

FEDERAL LITIGATION COURSE

TAB I

INDIVIDUAL LIABILITY OF FEDERAL

OFFICIALS & EMPLOYEES

I. Introduction

A. Overview - military service materially different from civilian employment

1. Different rules govern

2. Emphasis on preserving good order and discipline of Armed Forces

B. Constitutional structure - Constitution grants exclusive responsibility for Armed

Forces to legislative and executive branches. Courts have no role in governance

of Armed Forces.

1. Congress shall have power to raise and support Armies;

2. to provide and maintain a Navy;

3. to make rules for the government and regulation of the land and naval

forces (U.S. Const. art. I, § 8, cls. 12,13,14).

4. The President shall be Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States, when called into the

actual service of the United States (U.S. Const. art. II , §2, cl. 1).

C. Types of claims arising from military service

1. FTCA

2. Individual capacity claims - Bivens; 42 U.S.C. § 1983

3. Statutory Claims - Title VII; ADA; ADEA, FLSA

4. State law claims - negligence

II. Representation Issues

A. Who Do We Represent

1. Representation governed by 28 C.F.R. § 50.15

a. scope of employment

b. interest of United States

B. Overview of Components of Armed Forces

I-2

1. Active-Duty Armed Forces - active duty military are always federal employees

for representation purposes

a. 28 U.S.C. § 2671 - employee of the government includes members of

the military or naval forces of the United States

b. Army, Navy, Air Force, Marine Corps, Coast Guard

c. Title 10 U.S.C. - Armed Forces

2. Reserves - Reservists are federal employees when in military status - Drill,

Annual Training

a. Reserves: Army Reserve; Navy Reserve; Air Force Reserve; Marine

Corps Reserve; Coast Guard Reserve

b. Governed by Title 10 U.S.C. - Armed Forces

3. National Guard - overview

a. National Guard is joint State/Federal military organization

i. Congress shall have power to provide for organizing, arming,

and disciplining the Militia . . . reserving to the States

respectively, the appointment of the officers and the authority

of training the Militia according to the discipline prescribed by

Congress. U.S. Const. art. I, § 8, cl. 16.

ii. Title 32 U.S.C. National Guard

b. 54 Separate National Guards (50 states, D.C., Puerto Rico; Guam, U.S.

Virgin Islands)

c. Army National Guard; Air National Guard

d. Established 1636 - oldest component of Armed Forces

C. National Guard Representation - Guard soldiers and airmen are federal

employees except when performing State active duty.

1. 28 U.S.C. § 2671 - employee of the government includes members of the

National Guard when engaged in training or duty under section

115, 316, 502, 503, 504, 505 of Title 32.

2. Historic - Maryland v. United States (ex rel Levin), 381 U.S. 41, 53

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(1965) - Supreme Court holds that National Guard soldiers are State not

federal employees for FTCA purposes.

3. 1981 Amendment to Federal Tor Claims Act, PL 97-124, December

20, 1981, 95 Stat. 1666 - Congress legislatively overrules holding in

Maryland by amending FTCA’s definition of federal employee (28

§ 2671) to specifically include National Guard soldiers when engaged in

training or duty under Title 32.

a. Legislative history shows Congress’s recognition that “there is

substantial risk of personal liability by National Guard

personnel engaged in federal training activity.” H.R. Rep. 97-

384, 1981 U.S.C.C.A.N 2692. Intent of amendment was to

provide the National Guard the same coverage that exists for

the active Armed Forces and its other reserve components.

b. § 2671 definition of federal employee controls for

representation purposes.

c. Enumerated 32 U.S.C. sections cover all National Guard

military training except State active duty.

i 32 U.S.C. § 502 - Weekend Drill

ii. 32 U.S.C. § 503 - Annual Training

iii.32 U.S.C. § 505 - Schools

4. National Guard Technicians - Full-time Federal employees assigned to

State military departments who are required to maintain membership in

the National Guard as a condition of their federal employment.

a. National Guard Technicians Act of 1968 - 32 U.S.C. § 709

i. Technicians are employees of the United States - 32

U.S.C. § 709 (e)

5. Active Guard Reserve (AGR) - full-time Title 32 active-duty members

of National Guard.

III. Intramilitary Immunity

A. Feres v. United States, 340 U.S. 135, 138 (1950).

1. 3 consolidated negligence claims against United States - barracks fire,

medical malpractice claims.

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2. 28 U.S.C. § 1346(b) - facially broad waiver of sovereign immunity.

3. 28 U.S.C. § 2671 - contemplates that U.S. will sometimes be

responsible for negligence of military personnel by including members

of military and naval forces in FTCA’s definition of federal employees.

4. 28 U.S.C. § 2680(j) - FTCA exception for “any claim arising from the

combatant activities of the military or naval forces or the Coast guard

during time of war.”

5. 28 U.S.C. § 2674 - private party analogue - United States shall be liable

to the same extent as a private individual under like circumstances.

a. No private party analogue to soldier - no American law has ever

permitted a soldier to recover for negligence against either his

superior officers or the government he serves.

i. FTCA intended to waive sovereign immunity for

recognized causes of action and was not intended to visit

the government with novel and unprecedented liabilities.

6. Relationship between the Government and members of its Armed

Forces is distinctively federal in character.

7. Availability of uniform system of compensation for injury or death

arising from military service.

8. Incident to military service test - Supreme Court holds that the FTCA

did not waive sovereign immunity for injuries to soldiers where the

injuries “arise out of or are in the course of activity incident to service.”

340 U.S. at 141-142.

B. Feres Progeny

1. United States v. Shearer, 473 U.S. 52 (1985) - off-base murder of

private by another soldier. Mother alleges negligence by Army in

supervision of murderer.

a. “Feres seems best explained by the peculiar and special

relationship of the soldier to his superiors, the effects of the

maintenance of such suits on discipline, and the extreme results

that might obtain if suits . . . were allowed for negligent orders

given or negligent acts committed in the course of military

duty.” Shearer, 473 U.S. 52, 57 (1985) (internal quotation

marks and citations omitted).

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b. Situs of injury not nearly as important as whether the suit

requires the civilian court to second-guess military decisions

and whether the suit might impair essential military discipline.

Id. at 57.

c. Bars claims of the type that, if generally permitted, would

involve the judiciary in sensitive military affairs at the expense

of military discipline and effectiveness.

2. Stencel Aero v. United States, 431 U.S. 666 (1977) - National Guard

pilot injured when ejecting from F-100 fighter aircraft sues

manufacturer of ejection seat. Manufacturer brings cross-claim for

indemnification against United States.

a. Held - third party indemnification action barred when direct

action by soldier barred.

b. Reasoning - where case concerns an injury sustained by a

soldier while on duty, the effect of the action upon military

discipline is identical whether the suit is brought by the soldier

directly or by a third party. At issue would be the degree of

fault on the part of the Government’s agents and the effect upon

the service member’s safety. 431 U.S. at 673.

c. Key point - trial would, in either case, involve second-guessing

military orders and would often require members of the Armed

Services to testify in court as to each other’s decisions and

action. Id.

3. United States v. Johnson, 481 U.S. 681 (1987) - Coast Guard

helicopter crashes during rescue mission killing all on board due to

alleged negligence of civilian FAA air traffic controllers.

a. Held - Feres doctrine has been applied consistently to bar all

suits on behalf of service members against the Government

based upon service related injuries. Military status of alleged

tortfeasor immaterial to application of doctrine. 481 U.S. at

687-88.

b. Reasoning- In 40 years since Feres decision Court has never

deviated from the standard that soldiers cannot bring tort suits

against the Government for injuries that “arise out of or are in

the course of activity incident to service.” Id. Congress has

not changed standard despite ample opportunity.

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c. Key Points - Johnson reaffirms continued vitality of all three

grounds supporting intramilitary immunity. Court emphasizes

that because injury arose during performance of military duty,

“the potential that this suit could implicate military discipline is

substantial.” 481 U.S. at 691-92.

i. Scalia dissent.

B. Chappell v. Wallace, 462 U.S. 296, 303-04 (1983) - Bivens suit by Navy enlisted

sailors against their commander, superiors officers, and NCO’s alleging racial

discrimination in duty assignments, performance evaluations, and disciplinary

actions.

1. Individual capacity suit - generally look to military status of both

plaintiff and defendant

2. Explicit recognition that Feres guides analysis in Bivens suit arising

from military service although United States not a party. 462 U.S. at

299.

a. The special status of the military has required, Congress has

created and this Court has long recognized two systems of

justice, to some extent parallel: one for civilians and one for

military personnel. The special nature of military life, the need

for unhesitating and decisive action by military officers and

equally disciplined responses by enlisted personnel would be

undermined by a judicially created remedy exposing officers to

personal liability at the hands of those they are charged to

command. Here, as in Feres, we must be concerned with the

disruption of the peculiar and special relationship of the soldier

to his superiors that might result if the soldier were allowed to

hale his superiors into court. 462 U.S. at 303-04 (internal

citations and quotation marks omitted).

3. Holding - taken together, the unique disciplinary structure of the

military establishment and Congress’ activity in the field constitute

“special factors” which dictate that it would be inappropriate to

provide enlisted personnel a Bivens-type remedy against their superior

officers. Id. at 304.

C. United States v. Stanley, 483 U.S. 669, 679-84 (1987) - soldier unwittingly

subjected to secret LSD experiment brings Bivens claims against known and

unknown individual defendants.

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1. Court explicitly adopts arising from or incident to military service test

as controlling in Bivens as well as FTCA actions.

a. We see no reason why our judgment in the Bivens context

should be any less protective of military concerns than it has

been with respect to FTCA suits.

b. Officer-subordinate relationship present in Chappell not

necessary for application of intramilitary immunity.

2. Key Point - A test for liability that depends on the extent to which

particular suits would call into question military discipline and decision

making would itself require judicial inquiry into, and hence intrusion

upon, military matters. Whether a case implicates those concerns

would often be problematic, raising the prospect of compelled

depositions and trial testimony by military officers concerning the

details of their military commands. Even putting aside the risk of

erroneous judicial conclusions (which would becloud military decision

making), the mere process of arriving at correct conclusions would

disrupt the military regime. 483 U.S. at 682-83.

a. The arising from or incident to military service test, by contrast,

provides a line that is relatively clear and that can be discerned

with less extensive inquiry into military matters. Id. at 683.

IV. Nonjusticiable Military Issues

A. Orloff v. Willoughby, 345 U.S. 83 (1953) - Habeas Corpus petition filed by

physician drafted in doctor’s draft who was denied commission in Medical Corps

and instead assigned duties as private in medical lab because he refused to answer

questions concerning Communist affiliations.

1. Military appointments not subject to judicial review - the

commissioning of officers in the army is a matter of discretion within

the province of the President as Commander in Chief. “Whether Orloff

deserves appointment is not for judges to say and it would be idle, or

worse, to remand this case to the lower courts on any question

concerning his claim to a commission.” 345 U.S. at 92.

2. Duty assignments not subject to judicial review - “[t]he military

constitutes a specialized community governed by a separate discipline

from that of the civilian. Orderly government requires that the

judiciary be as scrupulous not to interfere in legitimate Army matters as

the Army must be scrupulous not to intervene in judicial matters.” 345

U.S. at 94.

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B. Gilligan v. Morgan, 413 U.S. 1 (1973) - Complaint for declaratory and injunctive

relief filed by Kent State University students seeking judicial evaluation of

appropriateness of the training and weaponry of the Ohio National Guard and

judicial supervision of future training and operations of National Guard.

1. Training, supervision, organization, equipping, and employment of

Armed Forces nonjusticiable.

2. The Guard is an essential reserve component of the Armed Forces of the

United States, available with regular forces in time of war.

3. “It would be difficult to think of a clearer example of the type of

governmental action that was intended by the Constitution to be left to

the political branches directly responsible - as the Judicial Branch is

not - to the electoral process. Moreover, it is difficult to conceive of

an area of governmental activity in which the courts have less

competence. The complex subtle, and professional decisions as to the

composition, training, equipping, and control of a military force are

essentially professional military judgments, subject always to civilian

control of the Legislative and Executive Branches.” 413 U.S. at 10.

C. Aktepe v. United States, 105 F.3d 1400, 1402-04 (11th

Cir. 1997) - accidental

firing of two live missiles from a United States Navy warship during a North

Atlantic Treaty Organization (NATO) training exercise. The missiles struck a

Turkish Navy warship resulting in several deaths and numerous injuries. Id. at

1402. The survivors of the Turkish sailors killed and wounded in the training

accident filed wrongful death and personal injury claims against the United States

under the Public Vessels Act, 46 U.S.C. App. §§ 781-790, and the Death on the

High Seas Act, 46 U.S.C. App. §§ 761-768. .

1. Relying in large part upon Gilligan, the Eleventh Circuit holds that these tort

claims present nonjusticiable political questions. Aktepe, 105 F.3d at 1402-04.

V. Remedial Statutes Generally Do Not Apply to Armed Forces

A. Absent an express directive from Congress, statutory remedies of general

application such as Title VII, the Americans with Disabilities Act (ADA), 42

U.S.C. § 1201 et seq., and the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 621-634, do not apply to uniformed members of the Armed Forces.

1. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., does not

apply to uniformed members of the Armed Forces. Spain v. Ball, 928 F.2d 61,

62 (2nd

Cir. 1991); Randall v. United States, 95 F.3d 339, 343 (4th

Cir. 1996);

Coffman v. Michigan, 120 F.3d 57, 59 (6th

Cir. 1997); Kawitt v. United States,

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842 F.2d 951, 953 (7th

Cir. 1988); Hupp v. Department of the Army, 144 F.3d

1144, 1147 (8th

Cir. 1998); Frey v. California, 982 F.2d 399, 404 (9th

Cir.

1993); Stinson v. Hornsby, 821 F.2d 1537, 1539-40 (11th

Cir. 1987).

2. ADA and ADEA do not apply to uniformed members of the Armed Forces.

Coffman v Michigan, 120 F.3d 57, (6th

Cir. 1997)(holding that Title VII, the

Rehabilitation Act, and the ADA do not apply to National Guard soldiers);

Spain v. Ball, 928 F.2d 61, 62 (2nd

Cir. 1991)(holding that Title VII and ADEA

do not apply to uniformed members of the Armed Forces).

3. Bar applies to applicants for military positions as well as current members of

Armed Forces.

a. Spain v. Ball, 928 F.2d 61, 62 (2nd

Cir. 1991), - unsuccessful applicant

for a commission in the United States Navy brought Title VII and

ADEA claims. The Second Circuit held that “Spain was applying for

an officer position with the Navy, a uniformed position. Accordingly,

he cannot allege any facts sufficient to support a Title VII claim . . . and

his claims should therefore have been dismissed with prejudice.” Id.

See also, Johnson v. Alexander, 572 F.2d 1219, 1222-24 (8th

Cir. 1978)(holding that “neither Title VII or its standards are applicable to

persons who enlist or apply for enlistment in any of the Armed Forces

of the United States); Moore v. Pennsylvania Department of Military

and Veterans Affairs, 216 F.Supp.2d. 446, 452 (E.D. Pa. 2002)(holding

that “Title VII provides the same immunity from suit by enlisted

personnel or applicants for enlistment in the National Guard that is

provided to federal armed forces.)”

VI. . 42 U.S.C. § 1983 Claims Against National Guard Soldiers

A. The Circuit Courts have unanimously applied the doctrine of intramilitary

immunity to bar all service-related § 1983 claims against National Guard officers.

Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 51

(2nd Cir. 1999) (collecting cases); Wright v. Park, 5 F.3d 586, 591 (1st Cir.

1993); Jorden v. National Guard Bureau, 799 F.2d 99, 106-108 (3rd Cir. 1986);

Holdiness v. Stroud, 808 F.2d 417, 423 (5th Cir. 1987); Knutson v. Wisconsin Air

National Guard, 995 F.2d 765, 770 (7th Cir. 1993); Uhl v. Swanstrom, 79 F.3d

751, 755-56 (8th Cir. 1996); Wood v. United States, 968 F.2d 738, 739 (8th Cir.

1992); Bowen v. Oistead, 125 F.3d 800, 804-05 (9th Cir. 1997); Martelon v.

Temple, 747 F.2d 1348, 1350-51 (10th Cir. 1984).

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